Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums

• Author: Max M. Schanzenbach,Joshua B. Fischman
• DOI: http://doi.org/10.1111/j.1740-1461.2012.01266.x
• Published date: 01 December 2012
• Date: 01 December 2012

Racial Disparities Under the Federal

Sentencing Guidelines: The Role

of Judicial Discretion and

Mandatory Minimums

Joshua B. Fischman and Max M. Schanzenbach*

The U.S. Sentencing Guidelines restrict judicial discretion in part to reduce unwarranted

racial disparities. However, judicial discretion may also mitigate disparities if judges use

discretion to offset disparities emanating from prosecutorial discretion or sentencing poli-

cies that have a disparate impact. To measure the impact of judicial discretion on racial

disparities, we examine doctrinal changes that affected judges’ discretion to depart from the

Guidelines. We find that racial disparities are either reduced or little changed when the

Guidelines are made less binding. Racial disparities increased after recent Supreme Court

decisions declared the Guidelines to be advisory; however, we find that this increase is due

primarily to the increased relevance of mandatory minimums, which have a disparate impact

on minority offenders. Our findings suggest that judicial discretion does not contribute to,

and may in fact mitigate, racial disparities in Guidelines sentencing.

I. Introduction

Twenty-five years ago, Congress approved the U.S. Sentencing Guidelines, imposing a

highly structured sentencing regime on federal district courts and opening sentencing

decisions for the first time to meaningful appellate review. One of the primary goals of the

Guidelines was the reduction of unwarranted racial disparities in sentencing. Indeed,

liberal stalwart Senator Ted Kennedy was a primary sponsor of the Sentencing Reform Act,

and liberal interest groups testified in favor of the Act on the grounds that binding

guidelines would reduce racial disparities (Stith & Koh 1993). Concerns about racial

disparities in sentencing have resurfaced since the Supreme Court declared the Guidelines

to be advisory and expanded judicial discretion in United States v. Booker1in 2005. Scholars

*Address correspondence to Max M. Schanzenbach, Professor of Law, Northwestern University, m-schanzenbach@

law.northwestern.edu. Fischman is Associate Professor of Law, Northwestern University.

The authors thank Amy Baron-Evans, Rachel Harmon, Paul Hofer, Kate Stith, two anonymous referees, and

participants at the Conference on Empirical Legal Studies, the American Law and Economics Association Annual

Meeting, and the University of Chicago Law and Economics Workshop. An earlier version was presented at the Law

and Economics of Race Conference at the University of Chicago.

1543 U.S. 220 (2005).

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Journal of Empirical Legal Studies

Volume 9, Issue 4, 729–764, December 2012

729

and policymakers are debating whether binding guidelines should be reenacted in a

modified form, and this debate has been influenced by concerns that racial disparities

would increase under advisory guidelines.

Theory alone cannot determine how expanding judicial discretion affects racial

disparities. Judges’ decisions may be influenced by subconscious bias or racial stereotyping,

in which case expanding judicial discretion would likely increase racial disparities. On the

other hand, judicial discretion could reduce racial disparity by mitigating bias from other

actors. For example, racial disparities could be the result of prosecutorial bias or sentencing

policies that have a disparate impact against minorities.

To measure the impact of judicial discretion on racial disparities, we examine four

changes in sentencing law over the last 20 years that affected judges’ ability to depart from

the Guidelines. We find that racial disparities were generally lower during periods when

judges had wider discretion, suggesting that judges exercise discretion in a manner that

mitigates disparity. This result is mostly confirmed when we examine shorter time windows

around each doctrinal change; when judicial discretion is increased, racial disparities either

decrease or do not change significantly.

In contrast to our main result, we find that racial disparities increased after the

Supreme Court’s 2007 decisions in Rita v. United States,2Gall v. United States,3and United

States v. Kimbrough4(hereinafter RGK), which clarified the Court’s holding in Booker and

further encouraged departures from the Guidelines. This finding cannot be attributed to

judicial bias, however, because the rate at which mandatory minimums apply to minority

offenders also increased after RGK. Thus, we conclude that judges were not able to reduce

sentences for minority offenders as much as they could for whites.

To partially isolate the effect of mandatory minimums, we divide the cases into two

categories: those in which the minimums were less likely to be binding (offenders with

low criminal history scores and offenses not involving firearms) and those in which mini-

mums were more likely to be binding (offenders with substantial criminal histories and

cases involving firearms). The increase in racial disparities after RGK occurred primarily

in those cases in which mandatory minimums are more likely to be binding. Thus, we

find no evidence that the increase in racial disparities after RGK was due to the biased

exercise of judicial discretion.

Prior studies examining the impact of Booker on racial disparities generated conflict-

ing conclusions. The U.S. Sentencing Commission (2006, 2010) conducted two studies that

found that racial disparities increased after the Guidelines were declared advisory. But

Ulmer et al. (2011) applied an alternative empirical model that found no significant

increase in racial disparity after Booker. One important difference between our findings and

the prior results is that the prior studies did not directly address the contribution of

mandatory minimums to racial disparities. A second difference is that we only include

2551 U.S. 338 (2007).

3552 U.S. 38 (2007).

4552 U.S. 85 (2007).

730 Fischman and Schanzenbach

explanatory variables that are exogenous to the sentencing judge’s decision. The Commis-

sion and Ulmer et al. controlled for judge-induced departures, whether a mandatory

minimum applied, and the presumptive Guidelines minimum. These are not control

variables, but outcome variables, which were themselves influenced by Booker and RGK.

Taken together, our results support two important conclusions. First, racial dispari-

ties under the Guidelines are not attributable to judicial discretion; in fact, judicial discre-

tion likely reduces racial disparities, at least in the current federal Guidelines regime.

Second, mandatory minimums have become more important in the post-Booker era and may

need serious reevaluation in light of the potential disparities they produce.

The remainder of this article is organized as follows. Section II explains the Guide-

lines and the legal changes in the standard of review, Section III explains our empirical

strategy and describes the data, Section IV discusses the results, and Section V concludes.

II. The Guidelines, Mandatory Minimums, and

Standards of Review

The Sentencing Reform Act of 1984 established the U.S. Sentencing Commission and

charged it with developing guidelines that would “provide certainty and fairness in meeting

the purposes of sentencing, avoiding unwarranted disparities among defendants with

similar records who have been found guilty of similar criminal conduct.”5Pursuant to this

directive, the Sentencing Commission developed a sentencing table, displayed in Appendix

Figure A1.

The sentencing calculation begins with a defendant’s base offense level, which is

determined by the crime of conviction. A district judge may then make adjustments to this

offense level on the basis of factors specified within the Guidelines—such as whether the

offender played a major or minor role in the crime—resulting in a final offense level. The

offender’s criminal history category is determined by the offender’s prior offenses.

Together, the offense level and criminal history yield a sentencing range. At higher

ranges, the lower bound of the sentencing range is 75 percent of the upper bound. Prior

to Booker, any properly calculated sentence within the Guidelines range was unreviewable,

except on very narrow grounds.6Calculation of the sentencing range itself was reviewable,

but mostly under a “clear error” standard because of the fact-intensive nature of offense

level calculations.

A judge may also depart from the guidelines if he or she finds that the case presents

atypical circumstances that were not contemplated by the Guidelines. The judge must give

reasons to justify this decision, and departures may be appealed by the prosecutor or the

defendant. Since the enactment of the Guidelines, departures have been reviewed de novo

and deferentially at different points in time.

528 U.S.C. § 991(b).

6For example, if a judge stated that he or she did not think a departure was permitted on the grounds offered by the

defense, an appellate court could remand with instructions to consider a departure.

Racial Disparities Under the Federal Sentencing Guidelines 731