Questioning Blackmun's Thesis: Does Uniformity in Sentencing Entail Unfairness?

Published date01 June 2015
Date01 June 2015
Questioning Blackmun’s Thesis: Does Uniformity in
Sentencing Entail Unfairness?
Ben Grunwald
It is commonly believed among criminal justice scholars that sentencing
guidelines increase uniformity in sentencing at the cost of fairness. They rea-
son that guideline systems rarely take all relevant case characteristics into con-
sideration, and as a result, impose sentences in particular cases that are biased
relative to the ideal or best sentence. This bias effect is one of the primary theo-
retical and practical challenges faced by courts and sentencing commissions in
the last 30 years, and provides one of the strongest arguments against manda-
tory sentencing guidelines. This article identifies a second effect of guidelines
on fairness, which has not been sufficiently acknowledged by the scholarly lit-
erature: the variance effect increases the fairness of sentences directly by
increasing uniformity. This article uses statistical simulation to examine the
relationship between the variance effect and the bias effect. The results pro-
vide substantial evidence that the variance effect is comparatively large, and
that it may often outweigh the negative effects of bias. Under these conditions,
sentencing guidelines will both increase uniformity and increase fairness.
Until the 1970s, judges in the United States enjoyed nearly
unlimited discretion in assigning sentences to criminal offenders.
Judges were free to adopt their own theory of punishment, to
determine how that theory applied to the facts of a case, and to
select the most appropriate punishment scheme on that basis.
Typically, only very wide statutory ranges constrained judges’
power to individualize sentences (Stith and Koh 1993). Early
empirical research from the 1960s to the early 1980s revealed
that the existing system produced large sentencing disparities,
finding that similar defendants with similar convictions often
received different punishments. Scholars theorized that these dis-
parities arose from variations in judges’ ideological background
(Forst and Wellford 1981; Partridge and Eldridge 1974), from
discrimination based on legally irrelevant characteristics such as
race and ethnicity (Baldus, Pulaski, and Woodworth 1983), and
from differences in local context (see Dixon 1995). Contemporary
Please direct all correspondence to Ben Grunwald, Department of Criminology, Uni-
versity of Pennsylvania; e-mail:
Law & Society Review, Volume 49, Number 2 (2015)
C2015 Law and Society Association. All rights reserved.
research confirms that these phenomena continue to impact sen-
tencing today (Abrams, Bertrand, and Mullainathan 2012; Albo-
netti 1997; Bushway and Piehl 2001; Kaut 2002; Ulmer and
Johnson 2004).
In response to evidence of disparity, federal and state legisla-
tures established sentencing guideline systems to constrain judi-
cial discretion. These systems typically used a limited number of
variables to determine a sentence range for each defendant.
Judges were then encouraged and in some systems required to
impose a sentence within that range (Frase 1995). The level of
discretion left up to the judge varied widely by jurisdiction, but
no system was more restrictive than the Federal Sentencing
Guidelines, which gave nearly all weight to crime severity and
criminal history (Tonry 1993).
Almost immediately, the Federal Guidelines were criticized
for promoting uniformity at the cost of fairness in individual
cases (e.g., Ogletree 1987). Critics widely argued that the federal
guidelines decreased the fairness of sentences by constraining
judges’ ability to take relevant case characteristics into considera-
tion. I call this the bias effect of sentencing guidelines: guidelines
can bias sentences away from the fairest or most appropriate sen-
tence by limiting judges’ ability to take all relevant case character-
istics into consideration and to fully individualize punishment.
While discussing disparities in the administration of the capital
punishment, Justice Harry Blackmun articulated a well-known
statement of the bias effect: “Experience has shown that ... consis-
tency and rationality ... are inversely related to [fairness]. A step
toward consistency is a step away from fairness” (Callins v. Collins
1994). Although Blackmun articulated this thesis in the context
of the death penalty, I take his critique as a paradigmatic formu-
lation of a broad and popular criticism of mandatory sentencing
guidelines echoed by judges (Schwarzer 1991) and scholars
(Alschuler 1991; Freed 1992; Ogletree 1987; Tonry 1993; Ulmer
1996), which persists until today (Kim 2004; O’Hear 2006; Osler
This article advances the sentencing literature in two ways.
First, it develops a novel framework for conceptualizing the rela-
tionship between uniformity and fairness. Second, it tests Black-
mun’s Thesis by identifying and examining a second effect of
sentencing guidelines that has not been acknowledged by the aca-
demic literature: increasing uniformity through guidelines has a
second effect—a variance effect—of directly increasing the fairness
of sentences on average.
This article uses simulation modeling to examine the relation-
ship between sentencing guidelines, uniformity and fairness. I
begin by defining an “ideal” sentence for a set of equivalent
500 Does Uniformity in Sentencing Entail Unfairness?
criminal cases based on assumptions that are favorable to Black-
mun’s Thesis. I then randomly generate a preguideline distribu-
tion of sentences centered around the “ideal” sentence. Based on
existing estimates from the literature, I introduce a sentencing
guideline system, and posit a series of plausible bias and variance
effects on the sentence distribution. The average distance of sen-
tences in the preguideline and postguideline distributions from
the “ideal” sentence is then compared to determine whether,
under these assumptions, Blackmun’s Thesis would hold. This
approach provides an important methodological benefit. Unlike
many other analytic methods in the sentencing literature, this
article avoids the need to assume a thick normative theory about
the purposes of punishment and the case characteristics that are
relevant in sentencing.
The results of the analysis show that, under plausible condi-
tions, the variance effect of sentencing guidelines is comparatively
large and may often outweigh the negative effects of bias. When
the bias effect is outweighed, Blackmun’s Thesis does not hold,
and the guidelines both increase uniformity and increase or
maintain the existing level of fairness, thereby defusing one of
the most formidable arguments against restrictive sentencing
guideline systems.
The remainder of the article proceeds as follows. I begin with
a brief history of sentencing guidelines, and a review of the
empirical literature on sentencing disparity. Next, I develop a
conceptual framework to clarify and explore the contours of
Blackmun’s Thesis, and then describe the basic design of the
study. I conclude by reporting the results of the analysis, and by
discussing the implications for the academic and policy debate on
sentencing guidelines.
Sentencing Guidelines
From the late 1970s to 1990s, Congress and a number of
state legislatures established sentencing commissions to design
guidelines that would increase uniformity in sentencing. Con-
gress, for example, established the United States Sentencing
Commission through the Sentencing Reform Act of 1984. The
commission was authorized to develop general rules to regulate
the form (e.g., fine, probation, or imprisonment) and intensity
of sentences on the basis of a list of variables including serious-
ness of offense, criminal history, age, education, vocational skills,
mental and emotional condition, family responsibilities, commu-
nity ties, and extent of participation in the offense. In 1987, the
commission passed a guideline system based primarily on two of
Grunwald 501

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