Race disparity under advisory guidelines

• Published date: 01 November 2011
• Date: 01 November 2011
• Author: Ryan W. Scott
• DOI: http://doi.org/10.1111/j.1745-9133.2011.00779.x

POLICY ESSAY

RACIAL DISPARITY IN WAKE OF THE

BOOKER/FANFAN DECISION

Race disparity under advisory guidelines

Dueling assessments and potential responses

Ryan W.Scott

Indiana University

Dueling studies of race disparity,one by the U.S. Sentencing Commission (USSC,

2010) and an alternative analysis published in this issue by Ulmer, Light, and

Kramer (2011), diverge sharply in their methodological choices and in their

characterization of trends in federal sentencing. The Commission’s study suggests a marked

increase in race disparity, differences in sentencing outcomes between racial groups that

cannot be explained by controlling for relevant nonrace factors, after the Supreme Court’s

decisions in United States v.Booker (2005) and Gall v. UnitedStates (2007). Those decisions

rendered the federal Sentencing Guidelines advisory and set a highly deferential standard

of appellate review. The alternative analysis finds more modest changes, which are largely

confined to immigration offenses and to the decision whether to impose a sentence of prison

or probation.

Yet, in several of their key findings, the Commission’s research and the new analysis

by Ulmer et al. (2011) reach similar conclusions. Both agree that for Black male offenders

compared with White male offenders, the “in/out” decision—whether to impose a sentence

of imprisonment or probation—is a source of persistent and increasing disparity. Both

suggest that evidence of race disparity under the mandatory Guidelines, before 2003, was

unstable and inconclusive. And surprisingly, both also indicate that race disparity affecting

Black male offenders reached its lowest levels ever under the PROTECT Act in 2003 and

2004, when the Guidelines were at their most mandatory and inflexible and departures

were closely policed through de novo appellate review.

Although narrow, those areas of agreement have potentially important implications

for sentencing law. This policy essay evaluates the support that the new research lends

Direct correspondence to Ryan W. Scott, Maurer School of Law, Indiana University, Law Building 247, 211

South Indiana Avenue, Bloomington, IN 47405 (e-mail: ryanscot@indiana.edu).

DOI:10.1111/j.1745-9133.2011.00779.x C2011 American Society of Criminology 1129

Criminology & Public Policy rVolume 10 rIssue 4