Racial disparity under the federal sentencing guidelines pre‐ and post‐Booker

• Date: 01 November 2011
• Published date: 01 November 2011
• Author: Raymond Paternoster
• DOI: http://doi.org/10.1111/j.1745-9133.2011.00778.x

EDITORIAL INTRODUCTION

RACIAL DISPARITY IN WAKE OF THE

BOOKER/FANFAN DECISION

Racial disparity under the federal sentencing

guidelines pre- and post-Booker

Lessons not learned from research on the death penalty

Raymond Paternoster

University of Maryland

The article by Ulmer, Light, and Kramer (2011, this issue) and the corresponding

policy essays by Albonetti (2011, this issue), Engen (2011, this issue), Scott (2011,

this issue), and Spohn (2011, this issue) in this section of Criminology & Public

Polic y examine the effect of several U.S. Supreme Court decisions on sentencing disparity

under the federal sentencing guidelines. In 1984, Congress enacted the Sentencing Reform

Act, which created the United States Sentencing Commission (USSC). One motivationfor

the Act was the belief that too much discretion was provided to judges in the federal system

and that as a result there was great disparity in sentencing White and minority defendants.1

The USSC was given the task of developing and implementing sentencing guidelines for

federal judges as a means of controlling judicial discretion, with the goal of achieving greater

“uniformity” in sentencing. Prior to the guidelines, federal judges had virtually unlimited

discretion to impose sentences so long as they met broad statutory requirements. Under the

guidelines, however, the judge had to calculate a defendant’s criminal history and offense

level score under strict rules, the result of which was the placement of the defendant on a

sentencing grid. The sentence found in the grid was the presumptive sentence, and although

departures could be made, the reason for the departure had to be given either in open court

or in a written judicial opinion. Furthermore, to monitor and ensure compliance with the

guidelines, the Reform Act also provided for appellate review of any departures from the

I am very grateful to Shawn Bushway, Tom Loughran, and Bobby Brame for reading a draft or two of this and

for providing helpful conversation. Direct correspondence to Raymond Paternoster, Department of

Criminology & Criminal Justice, University of Maryland, College Park, MD 20742–8235 (e-mail:

rpaternoster@crim.umd.edu).

1. Other, more conservative, critics also argued that there was too much discretion given to federal judges,

but the unwanted product it produced was leniency or “softness” in sentences rather than disparity.

DOI:10.1111/j.1745-9133.2011.00778.x C2011 American Society of Criminology 1063

Criminology & Public Policy rVolume 10 rIssue 4