Racial disparity in the wake of Booker/Fanfan Making sense of “messy” results and other challenges for sentencing research

• Published date: 01 November 2011
• DOI: http://doi.org/10.1111/j.1745-9133.2011.00773.x
• Author: Rodney Engen
• Date: 01 November 2011

POLICY ESSAY

RACIAL DISPARITY IN WAKE OF THE

BOOKER/FANFAN DECISION

Racial disparity in the wake of Booker/Fanfan

Making sense of “messy” results and other

challenges for sentencing research

Rodney Engen

University of Arkansas

In the three decades since the first comprehensive sentencing guidelines were adopted in

MN, PA, and WAscholars have produced a substantial body of research examining if,

when, and how race, ethnicity,or gender still “matter” in the sentencing process(in state

and federal systems). Yetit is difficult to comment on the impact of sentencing guidelines on

sentencing disparity because there simply is little empirically rigorous research examining

the effects of actual policy changes (i.e., the introduction, modification, repeal, etc., of

sentencing laws) for sentencing practices (Engen, 2009). In this context, the study by Ulmer,

Light, and Kramer (2011, this issue), and the U.S. Sentencing Commission report (USSC,

2010) to which it responds, constitute important contributions to the sentencing literature.1

Like the USSC study, Ulmer et al. (2011) examine racial/ethnic and gender disparity

in sentencing under the U.S. guidelines prior to, and subsequent to, several key pieces of

legislation and U.S. Supreme Court decisions affecting judicial discretion, most notably the

Booker and Gall decisions. However, Ulmer et al. also employ numerous methodological

“choices” (a wonderfully diplomatic phrase) different from those of the Commission’s study.

Consequently, Ulmer et al.’s findings also differ in some important ways from those of the

USSC study. They find that the increase in disparity between White and Black males is

primarily related to imprisonment decisions, as opposed to sentence length, and is largely

due to sentencing disparity in immigration cases. Ulmer et al. also find that controlling for

criminal history explains a substantial proportion of the disparity found by the Commission

Direct correspondence to Rodney Engen, Department of Sociology & Criminal Justice, University of Arkansas,

211 Old Main, Fayetteville, AR 72701 (e-mail: rengen@uark.edu).

1. See also Wooldredge, Griffin, and Rauschenberg (2005) and Wooldredge (2009) on the impact of

reforms in Ohio. While conceptually similar, the guidelines in Ohio have little in common with the

federal guidelines.

DOI:10.1111/j.1745-9133.2011.00773.x C2011 American Society of Criminology 1139

Criminology & Public Policy rVolume 10 rIssue 4