TY - JOUR
T1 - The "Liberation" of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision
T2 - Is There Increased Disparity and Divergence between Courts?
AU - Ulmer, Jeffery
AU - Light, Michael T.
AU - Kramer, John
N1 - Funding Information:
We thank Shawn Bushway and D. Wayne Osgood for their helpful input on earlier drafts of this paper. This research was supported by a grant from the National Science Foundation, Award no. SES-0350542. An earlier version of this paper was presented at the 2009 American Society of Criminology Annual meeting in Philadelphia.
PY - 2011/12
Y1 - 2011/12
N2 - The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.
AB - The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.
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U2 - 10.1080/07418825.2011.553726
DO - 10.1080/07418825.2011.553726
M3 - Article
AN - SCOPUS:84858625345
SN - 0741-8825
VL - 28
SP - 799
EP - 837
JO - Justice Quarterly
JF - Justice Quarterly
IS - 6
ER -