Racial disparity in the wake of the Booker/Fanfan decision

• Author: John H. Kramer,Michael T. Light,Jeffery T. Ulmer
• Date: 01 November 2011
• DOI: http://doi.org/10.1111/j.1745-9133.2011.00761.x
• Published date: 01 November 2011

RESEARCH ARTICLE

RACIAL DISPARITY IN WAKE OF THE

BOOKER/FANFAN DECISION

Racial disparity in the wake of the

Booker/Fanfan decision

An alternative analysis to the USSC’s 2010 report

Jeery T.Ulmer

Michael T.Light

John H. Kramer

The Pennsylvania State University

The U.S. Supreme Court ruled in United States v. Booker and a joint case

United States v. Fanfan (2005, hereafter Booker and Fanfa n, respectively) that

the Federal Sentencing Guidelines (hereafter, Guidelines) would henceforth be

advisory rather than presumptive in federal sentencing decisions. Many fear that the wake

of Booker/Fanfan might have brought increased unwarranted disparity based on the social

status characteristics of defendants (see reviews by Frase, 2007; Hofer,2007). Hofer (2007)

argued that if a primary goal of federal sentencing reform was a reduction of unwarranted

disparity, the impact of Booker/Fanfan on disparity is among the most important questions

facing sentencing policy makers. Chief among these concerns is the degree of disparity

connected to race and ethnicity, the reductionof which was a key reason for the Guidelines’

creation.

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding

that racial disparity in federal sentence lengths has indeed increased in the wake of the

Booker and Gall v. Unietd States (2007, hereafter Gall ) decisions. Specifically, the report’s

“refined models” found that Black males had approximately 5% greater sentence lengths

than White males in 2003–2004, 15% greater sentence lengths after the Booker decision,

and approximately 21% greater sentence lengths post-Gall . Thus, from the report, it seems

that racial disparity affecting Black males (and Black defendants in general) has become

We thank D. Wayne Osgood and Shawn Bushway for their helpful input on earlier drafts of this article. Direct

correspondence to Jeffery T. Ulmer, Department of Sociology, The Pennsylvania State University, 211 Oswald

Tower, University Park, PA 16802 (e-mail: jtu100@psu.edu).

DOI:10.1111/j.1745-9133.2011.00761.x C2011 American Society of Criminology 1077

Criminology & Public Policy rVolume 10 rIssue 4

Research Article Racial Disparity in Wake of the

Booker/Fanfan

Decision

worse in the years since Booker, and especially since Gall . This is an alarming development

for those who are rightly concerned with the racial fairness of federal justice.

Yet, the USSC 2010 report’s analyses made some methodological choices that differ

from those of several federal sentencing studies in the literature, and we detail these choices

in the subsequent discussion. It is, therefore, important to examine whether the USSC

2010 racial disparity findings are apparent when different analytical and modeling choices

commonly found in the sentencing literature are made. In addition, the USSC research

staff was not directed in their 2010 report to present an analysis of whether disparity has

increased post-Booker in sentences that depart/deviate from the Guidelines, and they did

not compare their refined model findings with time periods earlier than the years when the

PROTECT Act was in force (2003–2004). We, therefore, present such analyses because

judicial discretion to deviate from the Guidelines has increased post-Booker, and Guidelines

departures have been found to be the locus of extralegal disparity in research on pre-Booker

sentencing (Albonetti, 1997; Hartley, Maddan, and Spohn, 2007; Johnson, Ulmer, and

Kramer, 2008; Kempf-Leonard and Sample, 2001; Maxfield and Kramer, 1998; Mustard,

2001; Steffensmeier and Demuth, 2000).

Our analysis may present a fuller picture of the nature of racial disparity in the wake of

the Booker and Gall decisions, as well as the relaxation of constraints on judicial discretion

that they brought. According to Attorney General Holder (2009) as well as sentencing

policy observers such as Paul Hofer (2007), this is one of the most pressing and timely

questions faced by the federal sentencing community.If unwarranted disparity has increased

in the post-Booker/Gall years, some argue that policy remedies are necessary to return the

Guidelines somehow to a mandatory status and to attempt to roll back the judicial discretion

granted by Booker and subsequent decisions.

In a recent essay in Criminology & Public Policy, Engen (2009) also noted the paucity

of research on what happens in the wake of the repeal or relaxation of presumptive

sentencing schemes. By examining sentencing in the aftermath of Booker, which loosened

constraints dramatically on federal judicial discretion, we are helping to address the agenda

Engen (2009) proposed. In sum, we provide a timely alternative analysis that we believe

provides more specificity and guidance regardingquestions vital to federal sentencing policy:

(a) whether and how much racial disparity in federal sentencing has increased in the after-

math of Booker and Gall ; (b) whether disparity has increased in particular kinds of sentencing

decisions (i.e., sentence lengths, imprisonment, and Guidelines departures/deviations) or for

particular offenses; and (c) whether the levels of racial disparity post-Booker are significantly

greater compared with longer term federal sentencing patterns.

The Return of Federal Judicial Discretion: The Booker andGall Decisions

From1996 to 2005, legal developments moderately expanded judicial sentencing discretion,

then sharply restricted it, and finally,culminating in Booker , dramatically expanded it again.

From 1987 to 1996, discretion historically resting with the judiciary was tightly constrained

1078 Criminology & Public Policy

Ulmer, Light, and Kramer

and shifted to the prosecutor (Stith and Cabranes, 1998). Congress continued to restrict

judges’ sentencing discretion during this period, sending directives to the Commission, and

passing mandatory minimums to be incorporated into the Guidelines. Then, in Koon v.

United States (1996, hereafter Koon), the Supreme Court restored some discretion to judges

by establishing an “abuse of discretion” standard for appellate review of departures from

the Guidelines. Congress later sought to counter Koon with the Feeney Amendment to the

PROTECT Act of 2003, which replaced the “abuse of discretion” standard for departures

with a “de novo” appellate review of sentences, gave prosecutorscontrol over the third point

of the “acceptance of responsibility” Guidelines reduction, and directed the Commission to

reduce departure mechanisms.

Then, the Booker decision in 2005 ruled that the mandatory Guidelines could

not constitutionally assess “real offense” conduct that increased sentences on factors not

considered at trial by a jury. The Court’s solution was that the Guidelines would become

advisory. Judges must consider the Guidelines, but their discretion was returned to at least

pre-PROTECT Act, although not to pre-Guidelines, levels. Also, in the wake of Booker,

the standard of review now relies on the “reasonableness” of the sentence and on an “abuse

of discretion” standard rather than on correct application of the Guidelines. Stith (2008:

1,427) stated: “Booker, the Sentencing Commission and Main Justice may still be calling

signals but the decision makers on the playing field—judges and prosecutors—need not

follow them.”

Subsequently, the Court enhanced the judges’ discretion restored in Booker by

clarifying the meaning of “advisory” in Rita v. United States (2007), where it ruled that

federal appellate courts may but are not required to presume Guidelines sentences to

be reasonable. Consequently, sentences outside the Guidelines cannot be automatically

regarded as unreasonable. In Gall, the Court went further and held that district judges

may not automatically presume the Guidelines range to be reasonable and must “make

an individualized assessment based on the facts presented”(Ga ll , pp. 596–597, emphasis

added). Gall thus implies that district courts should make an individualized assessment of

whether a Guidelines sentence is reasonable or whether a sentence outside the Guidelines

is more reasonable. In Kimbrough v. United States (2007), the Court ruled that in cases

involving crack cocaine, judges could reasonably conclude that Guidelines sentences were

not reasonable in an individual case.

Policyobser vers havehad different reactions to these developments. U.S. Attorney Gen-

eral Eric Holder (2009: 1) noted that uniformity and the control of judicial discretion per

se do not guarantee justice: “The desire to have an almost mechanical system of sentencing

has led us away from individualized, fact-based determinations that I believe, within reason,

should be our goal.” Some, including the USSC, have adopted a “wait-and-see” approach

to post-Booker sentencing. For example, in 2005, an American Bar Association (ABA) Task

Force Report recommended that sufficient time be allowed to evaluate the efficacy of the

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