Mandatory sentencing and racial disparity: Assessing the role of prosecutors and the effects of booker

Yale Law Journal

Volumn 123, Issue 1, 2013, Pages 2-80

  Starr, Sonja B ^a   Rehavi, M Marit ^b  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^b UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84885900494     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (259)

1. Pew Ctr. on the States, One in 100: Behind Bars in America 2008, Pew Charitable Trusts 3 (Feb. 2008), http://www.pewstates.org/uploadedFiles/PCS_Assets/2008/one%20in%20100.pdf.
2. Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, Bureau Just. Stat., U.S. Dep't Just. 1 (Aug. 2003), http://www.bjs.gov/content/pub/pdf /piusp01.pdf.
3. Paul Guerino, Paige M. Harrison & William J. Sabol, Prisoners in 2010, Bureau Just. Stat., U.S. Dep't Just. 7, http://www.bjs.gov/content/pub/pdf/p10.pdf (last updated Feb. 9, 2012).
4. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
5. Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007).
6. Imprisoning America: The Social Effects of Mass Incarceration (Mary Patillo et al. eds., 2004).
7. 543 U.S. 220, 300 (2005) (Stevens, J., dissenting in part).
8. U.S. Sentencing Comm'n, Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report's Multivariate Regression Analysis 3 (2010), http://www.albany.edu/scj/documents/USSC_Multivariate_Regression_Analysis _ Report_001.pdf [hereinafter 2010 U.S. Sentencing Comm'n].
9. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
10. While we focus on race, these weaknesses are also common in research on other "unwarranted disparities" (for example, inter-district) and much of the non-disparityrelated research on sentencing policy.
11. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
12. Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. Crim. L. & Criminology 155, 155-56 (1987) (noting that "this 'hydraulic' or 'zero-sum' effect is so firmly entrenched as a criticism of current reform efforts that most researchers begin with the assumption that the displacement of discretion exists").
13. Lauren O'Neill Shermer & Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts, 27 Just. Q. 394, 395-96 (2010) (observing that "scholars agree that attempts to curtail judicial discretion are likely to concomitantly increase prosecutorial discretion" and that "prosecutorial discretion... may risk the perpetuation of the types of disparities sentencing reforms were intended to reduce").
14. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
15. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
16. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
17. Paul J. Hofer, United States v. Booker as a Natural Experiment: Using Empirical Research to Inform the Federal Sentencing Policy Debate, 6 Criminology & Pub. Pol'y 433, 435 (2007).
18. See Alberto Gonzales, U.S. Att'y Gen., Prepared Remarks of Attorney General Alberto Gonzalez: Sentencing Guidelines Speech (June 21, 2005), http://www.justice.gov/archive /ag/speeches/2005/06212005victimsofcrime.htm.
19. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
20. Judge Patti B. Saris, Chairwoman, U.S. Sentencing Comm'n, Remarks at the Public Hearing Before the United States Sentencing Commission 8 (Feb. 16, 2012), http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Hearing _Transcript_20120216.pdf.
21. See Gary Fields & John R. Emshwiller, Federal Guilty Pleas Soar as Bargains Trump Trials, Wall St. J., Sept. 23, 2012, http://online.wsj.com/article/SB100008723963904435893045 77637610097206808.html ("Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion.").
22. See U.S. Sentencing Comm'n, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 23 (2011), http://www.ussc.gov/Legislative_and _Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties /20111031_RtC_Mandatory_Minimum.cfm (reviewing the history of federal mandatory minimums and describing the 1980s "enactment of the mandatory minimums that are most commonly applied today").
23. See U.S. Sentencing Comm'n, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 23 (2011), http://www.ussc.gov/Legislative_and _Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties /20111031_RtC_Mandatory_Minimum.cfm (reviewing the history of federal mandatory minimums and describing the 1980s "enactment of the mandatory minimums that are most commonly applied today").
24. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.).
25. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.).
26. See Sentencing Table, U.S. Sent'g Comm'n (2011), http://www.ussc.gov/Guidelines/2011 _Guidelines/Manual_PDF/Sentencing_Table.pdf.
27. see also U.S. Sentencing Guidelines Manual ch. 5, pt. A (2012) (providing the Sentencing Chart in the Guidelines Manual).
28. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
29. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
30. U.S. Sentencing Guidelines Manual § 1A1.4 (2012).
31. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
32. Mary Patrice Brown & Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 Am. Crim. L. Rev. 1063, 1070 (2006).
33. Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 Stan. L. Rev. 293, 295-98 (2005).
34. Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 501, 522 (1992).
35. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
36. Mary Patrice Brown & Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 Am. Crim. L. Rev. 1063, 1070 (2006).
37. Stephen J. Schulhofer & Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period, 91 Nw. U. L. Rev. 1284, 1300-01 (1997).
38. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
39. cf. William J. Powell & Michael T. Cimino, Prosecutorial Discretion Under the Federal Sentencing Guidelines: Is the Fox Guarding the Hen House?, 97 W. Va. L. Rev. 373, 383-84 (1995) (noting "the frustration of federal judges" with the shift in power to prosecutors resulting from the Guidelines).
40. Molly Treadway Johnson & Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey, Fed. Jud. Center 10 (1997), https://bulk.resource.org /courts.gov/fjc/gssurvey.pdf.
41. Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 Stan. L. Rev. 293, 295-98 (2005).
42. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 117 (2005).
43. Stephanos Bibas, The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain, 94 J. Crim. L. & Criminology 295, 300 (2004).
44. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
45. Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. Crim. L. & Criminology 155, 155-56 (1987) (noting that "this 'hydraulic' or 'zero-sum' effect is so firmly entrenched as a criticism of current reform efforts that most researchers begin with the assumption that the displacement of discretion exists").
46. See Rodney L. Engen, Assessing Determinate and Presumptive Sentencing-Making Research Relevant, 8 Criminology & Pub. Pol'y 323, 328-29 (2009).
47. Molly Treadway Johnson & Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey, Fed. Jud. Center 10 (1997), https://bulk.resource.org /courts.gov/fjc/gssurvey.pdf.
48. Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 Stan. L. Rev. 1211, 1252 (2004).
49. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 117 (2005).
50. U.S. Sentencing Comm'n, Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform iv (2004), http://www.ussc.gov/Research _and_Statistics/Research_Projects/Miscellaneous/15_Year_Study/15_year_study_full.pdf (explaining that, although the Guidelines were promulgated in 1987.
51. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
52. 543 U.S. 220, 246 (2005).
53. 543 U.S. 220, 246 (2005).
54. 543 U.S. 220, 246 (2005).
55. 543 U.S. 220, 246 (2005).
56. 543 U.S. 220, 246 (2005).
57. Gall v. United States, 552 U.S. 38, 51 (2007).
58. Kimbrough v. United States, 552 U.S. 85, 108-09 (2007).
59. see also Rita v. United States, 551 U.S. 338, 354-55 (2007) (barring appellate courts from treating outside-Guidelines sentences as presumptively unreasonable).
60. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
61. See U.S. Sentencing Comm'n, Survey of Article III Judges on the Federal Sentencing Guidelines ch. 2 (2003), http://www.ussc.gov/Research_and_Statistics/Research_Projects /Surveys/200303_Judge_Survey/jschap2.pdf (showing that 52.8% of surveyed judges, when asked to rate the Guidelines' performance in reducing disparities on a 1 to 6 scale, picked either 5 or 6).
62. The "anchoring" literature shows that when people have to translate subjective judgments onto a numeric scale, they are often highly influenced by hearing some number mentioned-even numbers that (unlike the Guidelines) are actually irrelevant to the question posed. See J. J. Prescott & Sonja Starr, Improving Criminal Jury Decision Making After the Blakely Revolution, 2006 U. Ill. L. Rev. 301, 326 (discussing "anchoring problems" in mock jury studies of punitive damages awards and criminal jury verdicts).
63. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
64. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
65. See, e.g., Brian Iannacchione & Jeremy D. Ball, The Effect of Blakely v. Washington on Upward Departures in a Sentencing Guidelines State, 24 J. Contemp. Crim. Just. 419, 420-21 & tbl.1 (2008) (treating upward departures as the outcome variable).
66. David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts, 44 J.L. & Econ. 285, 297 (2001) (including separate dummy variables for each Guidelines grid cell).
67. Jeffrey S. Nowacki, Race, Ethnicity, and Judicial Discretion: The Influence of the United States v. Booker Decision, 20 Crime & Delinq. 1, 12-13 (2013) (using offense level and criminal history controls).
68. Max Schanzenbach, Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics, 34 J. Legal Stud. 57, 63 & tbl.1 (2005) (same).
69. Jeffrey S. Nowacki, Race, Ethnicity, and Judicial Discretion: The Influence of the United States v. Booker Decision, 20 Crime & Delinq. 1, 12-13 (2013) (using offense level and criminal history controls).
70. E.g., Darrell Steffensmeier et al., Gender and Imprisonment Decisions, 31 Criminology 411, 420 (1993) (using a ten-point severity scale).
71. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 117 (2005).
72. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 117 (2005).
73. See Rodney L. Engen, Assessing Determinate and Presumptive Sentencing-Making Research Relevant, 8 Criminology & Pub. Pol'y 323, 328-29 (2009).
74. Lauren O'Neill Shermer & Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts, 27 Just. Q. 394, 395-96 (2010) (observing that "scholars agree that attempts to curtail judicial discretion are likely to concomitantly increase prosecutorial discretion" and that "prosecutorial discretion... may risk the perpetuation of the types of disparities sentencing reforms were intended to reduce").
75. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
76. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
77. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
78. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
79. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
80. U.S. Sentencing Guidelines Manual § 2D1.1 (2012).
81. U.S. Sentencing Guidelines Manual § 2D1.1 (2012).
82. U.S. Sentencing Guidelines Manual § 2D1.1 (2012).
83. Lauren O'Neill Shermer & Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts, 27 Just. Q. 394, 395-96 (2010) (observing that "scholars agree that attempts to curtail judicial discretion are likely to concomitantly increase prosecutorial discretion" and that "prosecutorial discretion... may risk the perpetuation of the types of disparities sentencing reforms were intended to reduce").
84. One early study by Spohn et al. found disparities favoring white defendants in the rate of filing felony charges in Los Angeles County, but did not analyze charge severity within felony charges. Cassia Spohn et al., The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges, 25 Criminology 175 (1987).
85. One early study by Spohn et al. found disparities favoring white defendants in the rate of filing felony charges in Los Angeles County, but did not analyze charge severity within felony charges. Cassia Spohn et al., The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges, 25 Criminology 175 (1987).
86. Charles Crawford et al., Race, Racial Threat, and Sentencing of Habitual Offenders, 36 Criminology 481 (1998).
87. Jeffrey T. Ulmer et al., Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences, 44 J. Res. Crime & Delinq. 427 (2007).
88. Jill Farrell, Mandatory Minimum Firearm Penalties: A Source of Sentencing Disparity?, 5 Just. Res. & Pol'y 95 (2003).
89. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
90. see also Disparate Impact of Federal Mandatory Minimums on Minority Communities in the United States, Fams. Against Mandatory Minimums & Nat'l Council of La Raza (Mar. 10, 2006), http://www.nclr.org/images /uploads/publications/38367_file_IAHRC_statement_FNLNWQC__2__fnl.pdf.
91. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
92. One study of Illinois courts evaluates whether judges differ from one another in their racial disparity patterns, finding that they do. See David Abrams et al., Do Judges Vary in Their Treatment of Race?, 41 J. Legal Stud. 347 (2012). That study does not need to control for "presumptive sentence" because it can take advantage of the random assignment of cases to judges. The result interestingly shows that judicial discretion matters to racial disparity patterns. However, it does not answer the more basic question of whether judges are actually treating similar defendants differently based on race, as opposed to varying in their treatment of case features correlated with race. Similarly, studies that evaluate the interaction between the race and gender of judges or prosecutors and those of defendants also provide interesting insights, but cannot squarely address whether or how race or gender affects outcomes.
93. See Amy Farrell et al., Intersections of Gender and Race in Federal Sentencing: Examining Court Contexts and the Effects of Representative Court Authorities, 14 J. Gender Race & Just. 85 (2010).
94. Max Schanzenbach, Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics, 34 J. Legal Stud. 57, 63 & tbl.1 (2005) (same).
95. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
96. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
97. Facially neutral government policies and practices will not be deemed unconstitutional unless those challenging them can establish a discriminatory purpose. See Washington v. Davis, 426 U.S. 229 (1976).
98. Many critics have argued that the Supreme Court's focus on discriminatory purpose is overly formalistic and have instead advocated a focus on the harms imposed on subordinated groups. See Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9-10 (2004) (reviewing this literature). We are sympathetic to this view, but this longstanding debate need not be resolved for our purposes; empirical differentiation of the reasons for disparities has practical uses regardless.
99. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
100. Many critics have argued that the Supreme Court's focus on discriminatory purpose is overly formalistic and have instead advocated a focus on the harms imposed on subordinated groups. See Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9-10 (2004) (reviewing this literature). We are sympathetic to this view, but this longstanding debate need not be resolved for our purposes; empirical differentiation of the reasons for disparities has practical uses regardless.
101. Many critics have argued that the Supreme Court's focus on discriminatory purpose is overly formalistic and have instead advocated a focus on the harms imposed on subordinated groups. See Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9-10 (2004) (reviewing this literature). We are sympathetic to this view, but this longstanding debate need not be resolved for our purposes; empirical differentiation of the reasons for disparities has practical uses regardless.
102. The statutory maximum and minimum were simply looked up in the listed statutes, although there were sometimes ambiguities to be resolved, as discussed below. The Guidelines measure is more complicated, because a Guidelines sentence normally is not determined based on the statutory charge alone-it depends on additional fact-finding. The measure we used is the Guidelines sentence that would apply if all of the statutory elements of all charged offenses were proven, but no other aggravating or mitigating facts were proven at sentencing. It is thus intentionally limited to serve as a "charge only" measure, allowing the effects of subsequent Guidelines sentencing fact-finding to be separated out from those of initial charging.
103. Many critics have argued that the Supreme Court's focus on discriminatory purpose is overly formalistic and have instead advocated a focus on the harms imposed on subordinated groups. See Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9-10 (2004) (reviewing this literature). We are sympathetic to this view, but this longstanding debate need not be resolved for our purposes; empirical differentiation of the reasons for disparities has practical uses regardless.
104. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
105. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
106. As discussed below, in our analysis of overall sentencing disparities as well as the final mandatory minimum, the results were fairly similar when we added drug and child pornography cases to the sample (though the unexplained racial disparities are somewhat larger in drug cases).
107. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
108. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
109. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
110. Overall charge severity was reduced in only 10-15% of the cases in our sample (varying depending on the severity measure), and in 85% of cases there was no change to the charge labeled the "lead charge" (the most serious charge) in the AOUSC data.
111. Memorandum from John Ashcroft, U.S. Att'y Gen., to All Fed. Prosecutors, Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing (Sept. 22, 2003), http://www.justice.gov/opa/pr/2003/September/03_ag_516.htm.
112. Memorandum from John Ashcroft, U.S. Att'y Gen., to All Fed. Prosecutors, Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing (Sept. 22, 2003), http://www.justice.gov/opa/pr/2003/September/03_ag_516.htm.
113. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
114. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
115. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
116. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
117. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
118. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
119. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
120. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
121. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
122. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
123. See 18 U.S.C. § 924(c)(1)(A)(ii) (2012) (seven-year minimum if the firearm is brandished).
124. See 18 U.S.C. § 924(c)(1)(A)(ii) (2012) (seven-year minimum if the firearm is brandished).
125. E.g., Erik Luna, Testimony Before the U.S. Sentencing Commission: Mandatory Minimum Sentencing Provisions Under Law, U.S. Sent'g Comm'n 3 (May 27, 2010), http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20100527/Testimony _Luna.pdf.
126. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
127. See United States v. Cabrera, 567 F. Supp. 2d 271, 273 (D. Mass. 2008).
128. See United States v. Cabrera, 567 F. Supp. 2d 271, 273 (D. Mass. 2008).
129. Use of guns is usually clear from the arrest codes, and our description flags also included guns, drugs, and the combination thereof. Some cases might have been missed, but we seriously doubt that the number is large enough to explain the large racial disparity in 924(c) charges.
130. The EOUSA suspect investigation files record the drug quantity seized at arrest, but patterns in the quantity distribution over time suggest a serious problem with this data field beginning in 2004, when EOUSA adopted a new data entry system. Our analysis leads us to suspect the problem relates to the addition of a decimal point to the field-perhaps some (but not all) prosecutors did not notice the change. Comparisons to the Sentencing Commission's quantity data do, however, make it apparent that the problem is with the new system, not the old one. It would be a service to future researchers and the public if EOUSA investigated this problem.
131. The Booker results are exclusively and fully presented in this Article. We begin, however, by discussing the results of a separate but related study of racial disparities in charging and sentencing more generally. In this Article, we discuss that study's motivations, highlight key results, and explain its relevance to current law and policy debates, including the Sentencing Commission's report. The full results, including relevant tables and graphs and a full technical explanation of our methods, can be found in M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences (Univ. of Mich. Program in Law & Econ., Working Paper No. 12-002, 2012) (under review), http://ssrn.com/abstract=1985377.
132. Quantities were converted into implied offense levels according to the Guidelines tables to allow comparisons across drug types.
133. The range of possible role adjustments is from-4 to +4. U.S. Sentencing Guidelines Manual § 3B1.1 to 3B1.2 (2012).
134. Criminal history was not included in our main charging analysis because it is only recorded for the subset of charged defendants who were eventually sentenced. But within that subset, the charging disparities persisted after controlling for criminal history.
135. The decomposition estimators we used allowed us to estimate the combined explanatory value of a group of variables in explaining the black-white gap, and the socioeconomic status indicators did not explain a significant share of that gap.
136. Some of these variables have significant effects on some outcome variables, but these effects are small and inconsistent in sign. There is no overall pattern suggesting that poverty worsens outcomes.
137. The hurdles facing indigent defendants have long been the subject of extensive scholarship and policy attention. See, e.g., The Access to Justice Initiative, U.S. Dep't Just., http://www.justice.gov/atj/ (last visited Apr. 9, 2013) (noting the "access-to-justice crisis").
138. Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317, 341-42 (2011) ("Federal appellate and district judges in our sample express high regard for prosecutors and public defenders but low regard for court-appointed counsel and retained counsel.... ").
139. See, e.g., Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679, 686-87 (2007) (describing "rampant structural ineffectiveness" resulting from defenders being "incredibly overworked and severely underfunded").
140. See Steven B. Bright, Legal Representation for the Poor: Can Society Afford This Much Injustice?, 75 Mo. L. Rev. 683, 685 & n.11 (2010) (noting the superior resources of federal public defenders).
141. If the prosecutor's pre-arrest involvement in the case influenced the arrest offense, this omission may leave out an aspect of prosecutorial discretion as well. When we drop cases with pre-arrest indictments (the cases with the most extensive pre-arrest involvement), disparity estimates increase.
142. Black arrestees comprise 45% of our sample, a rate far exceeding the overall share of black people in the general population; the question is the extent to which this overrepresentation reflects actual crime rates or policing patterns. This gap is included neither in the "explained" part nor the "unexplained" part of our disparity estimates; we can only decompose disparities within the set of cases we have data on.
143. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
144. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
145. see also William J. Stuntz, Race, Class, and Drugs, 98 Colum. L. Rev. 1795 (1998) (observing that drug enforcement targets open-air markets, which are dominated by black men).
146. See, e.g., Andrew Gelman et al., An Analysis of the New York City Police Department's "Stopand-Frisk" Policy in the Context of Claims of Racial Bias, 102 J. Am. Stat. Ass'n. 813 (2007) (finding evidence that black people in New York City are stopped and frisked at disproportionately high rates, and reviewing the policing-disparity literature).
147. See, e.g., Nicola Persico & Petra Todd, Generalising the Hit Rates Test for Racial Bias in Law Enforcement, with an Application to Vehicle Searches in Wichita, 116 Econ. J. F351, F364 (2006).
148. See, e.g., Sarath Sanga, Reconsidering Racial Bias in Motor Vehicle Searches: Theory and Evidence, 117 J. Pol. Econ. 1155, 1157 (2009). This literature does not, in any event, suggest irrational favoritism towards black people.
149. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 117 (2005).
150. Pub. L. No. 111-220, 124 Stat. 2372 (codified in scattered sections of 21 U.S.C. and 28 U.S.C.).
151. Pub. L. No. 111-220, 124 Stat. 2372 (codified in scattered sections of 21 U.S.C. and 28 U.S.C.).
152. Through its career offender and armed career criminal provisions, federal sentencing law is particularly harsh on cases that combine violent or (especially) gun cases with extensive criminal history-another structural feature with particularly harsh effects on black men. See 18 U.S.C. § 924(c), (e) (2012).
153. U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.4 (2012).
154. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
155. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
156. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
157. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
158. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
159. Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 12-018, 2012), http://ssrn.com/abstract =2144002.
160. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
161. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
162. Sessions himself proposes a simplified mandatory guidelines system instead. William K. Sessions III, At the Crossroads of the Three Branches: The U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles, 26 J.L. & Pol. 305, 309-10, 337-56 (2011).
163. The Booker results are presented only in this Article, rather than being further developed elsewhere, so we provide more technical detail in this Part, as well as tables and figures.
164. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
165. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
166. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
167. Jeffrey S. Nowacki, Race, Ethnicity, and Judicial Discretion: The Influence of the United States v. Booker Decision, 20 Crime & Delinq. 1, 12-13 (2013) (using offense level and criminal history controls).
168. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
169. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
170. If cases thereby became more resource-intensive, one might expect prosecutors to bring fewer cases or fewer charges per case. See J.J. Prescott, Empirical Evidence of Prosecutorial Charging Manipulation (2006) (unpublished manuscript) (on file with authors).
171. This could be the case even if the changes looked superficially equivalent by race. For instance, if prosecutors doubled their use of mandatory minimums for both black and white defendants in response to Booker, but their underlying use of mandatory minimums was twice as common for black defendants, the doubling would look racially neutral even as it had twice the impact on black defendants' sentences.
172. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
173. Jeffrey S. Nowacki, Race, Ethnicity, and Judicial Discretion: The Influence of the United States v. Booker Decision, 20 Crime & Delinq. 1, 12-13 (2013) (using offense level and criminal history controls).
174. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
175. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
176. See Rodney L. Engen, Assessing Determinate and Presumptive Sentencing-Making Research Relevant, 8 Criminology & Pub. Pol'y 323, 328-29 (2009).
177. Jeffery T. Ulmer & Michael T. Light, The Stability of Case Processing and Sentencing Post-Booker, 14 J. Gender Race & Just. 143 (2010) (finding perceptions of increased detail in factual stipulations and appeal waivers in plea agreements, but also increased entry of "open pleas" with no agreement).
178. Jeffery T. Ulmer & Michael T. Light, The Stability of Case Processing and Sentencing Post-Booker, 14 J. Gender Race & Just. 143 (2010) (finding perceptions of increased detail in factual stipulations and appeal waivers in plea agreements, but also increased entry of "open pleas" with no agreement).
179. John Wooldredge et al., (Un)anticipated Effects of Sentencing Reform on the Disparate Treatment of Defendants, 39 Law & Soc'y Rev. 835, 860-64 (2005).
180. Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. Crim. L. & Criminology 155, 155-56 (1987) (noting that "this 'hydraulic' or 'zero-sum' effect is so firmly entrenched as a criticism of current reform efforts that most researchers begin with the assumption that the displacement of discretion exists").
181. Specifically, the regression includes an overall linear (monthly) time trend as well as an interaction between that trend and the "black" coefficient.
182. The PROTECT Act went into effect on April 30, 2003, and included various provisions designed to discourage downward departures from the Guidelines. PROTECT Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-76 (codified in scattered sections of 18 U.S.C. and 28 U.S.C.).
183. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
184. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
185. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
186. We controlled for arrest offense, criminal history, district, education, age, and multidefendant case structure.
187. This figure is obtained by multiplying the per-month linear trend estimate by the number of months.
188. We obtain this estimate with a single differences-in-differences regression containing time period dummies interacted with the "black" variable. This analysis shows, if anything, slightly smaller disparities in the later periods (with the smallest post-Gall), although the period-race interaction terms are not significant. Standard errors are clustered on the month to account for possible events affecting many cases at once. All significant results remain so with alternative clustering, such as clustering on the district to account for correlated prosecutorial policies or courthouse practices.
189. This is likely because, as our data show, child pornography and child sexual exploitation arrestees are overwhelmingly white, so increasing sentences for those offenses tends to reduce black-white disparity. Also, had we included Hispanic defendants, the estimated decline in disparity would have been larger and statistically significant.
190. Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. Crim. L. & Criminology 155, 155-56 (1987) (noting that "this 'hydraulic' or 'zero-sum' effect is so firmly entrenched as a criticism of current reform efforts that most researchers begin with the assumption that the displacement of discretion exists").
191. Terance D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. Crim. L. & Criminology 155, 155-56 (1987) (noting that "this 'hydraulic' or 'zero-sum' effect is so firmly entrenched as a criticism of current reform efforts that most researchers begin with the assumption that the displacement of discretion exists").
192. Note that even in the Column 2 and Column 3 regressions, the overall estimated average sentences for black defendants are lower at the end of the period than at the beginning. That is, even with the presumptive sentence approach, the rise in black-white disparity is not large enough to offset the overall monthly trend-other factors equal, sentences for both black and white defendants declined in all of the models over time.
193. When we repeat the Column 3 analysis (the one closest to the Commission's) on a sample that includes the excluded obscenity, sex-offender, child sex crimes, and identity theft categories, we obtain a somewhat stronger estimated upward trend in disparity, totaling about four months. Likewise, when we repeat the Column 4 analysis for that sample, we find a larger decrease in offense-level disparity, totaling 1.5 levels. This supports the theory that inclusion of those categories contributed to the Commission's findings of increased disparity in the later periods, largely because the underlying presumptive sentence measure was changing.
194. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
195. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
196. PROTECT Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-76 (codified in scattered sections of 18 U.S.C. and 28 U.S.C.).
197. PROTECT Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-76 (codified in scattered sections of 18 U.S.C. and 28 U.S.C.).
198. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
199. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
200. Jeffrey T. Ulmer et al., Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC's 2010 Report, 10 Criminology & Pub. Pol'y 1077, 1088-90 (2011) (following this approach and also reviewing prior literature doing the same).
201. Jeffrey S. Nowacki, Race, Ethnicity, and Judicial Discretion: The Influence of the United States v. Booker Decision, 20 Crime & Delinq. 1, 12-13 (2013) (using offense level and criminal history controls).
202. U.S. Sentencing Comm'n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing pt. A, at 8-9, 108 (2012), http://www.ussc.gov /Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports /2012_Booker/index.cfm [hereinafter 2012 U.S. Sentencing Comm'n]. The update extended the last period through 2011.
203. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
204. Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
205. RD estimators are widely used in the education, public finance, political economy, and labor economics literatures to recover causal estimates when randomized experiments are not possible. See Guido W. Imbens & Thomas Lemieux, Regression Discontinuity Designs: A Guide to Practice, 142 J. Econometrics 615 (2008).
206. David S. Lee & Thomas Lemieux, Regression Discontinuity Designs in Economics, 48 J. Econ. Literature 281 (2010).
207. See, e.g., Michael L. Anderson, Subways, Strikes, and Slowdowns: The Impacts of Public Transit on Traffic Congestion 10-11 (Nat'l Bureau of Econ. Research, Working Paper No. 18757, 2013), http://www.nber.org/papers/w18757.pdf.
208. Wojciech Kopczuk et al., Do the Laws of Tax Incidence Hold? Point of Collection and the Pass-Through of State Diesel Taxes 23-24 (Nat'l Bureau of Econ. Research, Working Paper No. 19410, 2013), http://www.nber.org/papers /w19410.pdf.
209. Unlike in the linear trend analysis in Section A, we do not exclude Hispanic defendants from this analysis; they are included among the white and black defendants. However, our results are very similar if we do exclude Hispanic defendants, focusing on the gap between non-Hispanic white and black defendants.
210. For reasons explained below, this graph and all others are limited to district courts in the Second, Fourth, Fifth, Sixth, and Eleventh Circuits. The nationwide departure pattern looks similar.
211. The graph includes all departures. In 46% of departure cases, the departure was requested by the government as a reward for "substantial assistance" in another case. If these were excluded, the pattern would look similar, but the rise immediately following Booker would be even steeper.
212. 551 U.S. 338 (2007).
213. PROTECT Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-76 (codified in scattered sections of 18 U.S.C. and 28 U.S.C.).
214. The average time from charge to disposition in our sample is five months, and the average time from disposition to sentencing is a further four months.
215. The archives of Douglas Berman's Sentencing Law and Policy blog for the period between the decisions in Blakely (June 24, 2004) and Booker (Jan. 12, 2005) provide an excellent record of this disarray. See, e.g., June 26, 2004, Sent'g L. & Pol'y, http://sentencing.typepad.com/sentencing_law_and_policy/2004/week26/index.html (last visited Sept. 1, 2012).
216. See United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, 542 U.S. 956 (2004).
217. See United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, 542 U.S. 956 (2004).
218. United States v. Reese, 382 F.3d 1308, 1310 (11th Cir. 2004), vacated, 543 U.S. 1114 (2005).
219. United States v. Koch, 383 F.3d 436, 438 (6th Cir. 2004), vacated, 544 U.S. 995 (2005).
220. United States v. Hammoud, 381 F.3d 316, 345 (4th Cir. 2004), vacated, 543 U.S. 1097 (2005).
221. United States v. Mincey, 380 F.3d 102, 106 (2d Cir. 2004).
222. United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), vacated, 543 U.S. 1101 (2005).
223. For instance, DOJ directed prosecutors to begin including aggravating factors in indictments, rather than waiting for the plea stipulation or sentencing hearing to allege them. See Memorandum from James Comey, Deputy Att'y Gen., to All Fed. Prosecutors, Departmental [sic] of Justice Legal Positions and Policies in Light of Blakely v. Washington (July 2, 2004).
224. We treat January 2005 as the first month in the post-Booker period. There were six business days in January before Booker was decided, and the dataset gives dates only in months. Conflating the last week of the pre-period into the post-period is (if anything) likely to mean we slightly understate Booker's effects.
225. The "charging date" is the date of the indictment, when there is one. In cases with no formal indictment, we used either the arrest date or the date the prosecutor opened the file on the case, whichever was later (usually they are the same month)-that is, the date that the prosecutor had both the case and the defendant in hand, and declined to add to or change the charges from the complaint.
226. For instance, DOJ directed prosecutors to begin including aggravating factors in indictments, rather than waiting for the plea stipulation or sentencing hearing to allege them. See Memorandum from James Comey, Deputy Att'y Gen., to All Fed. Prosecutors, Departmental [sic] of Justice Legal Positions and Policies in Light of Blakely v. Washington (July 2, 2004).
227. The controls include arrest offense, criminal history, gender, age, a multi-defendant case flag, U.S. citizenship, criminal history, and education. The results shown exclude district, which was not an important contributor to racial disparity in our initial study; including so many dummy variables was problematic given the sample size per month. District was added in robustness checks, and the results were generally similar but often less precise. Note that controls serve a different function in RD than they do in other regressions-they are mainly there to absorb statistical noise. If there are underlying continuous trends in the effects of the control variables, those will be filtered out by the time-trend variables. Including the controls, however, protects against the possibility of sudden changes in underlying case features at Booker. In a perfect RD situation-that is, if one could safely assume that other variables changed only in continuous ways-one would not need controls at all, but we do not rely on that assumption.
228. To provide perspective, about 40% of defendants during 2004 faced a mandatory minimum.
229. The curves in the visual representations are fit slightly differently from the formal RD, so the correspondence between the figures and tables is only approximate. The figures contain the monthly average of the variable of interest along with curves fitted using kernel weighted local polynomial smoothing. The curves are fit separately on each side of Booker, and capture linear and non-linear trends over time. The vertical distance between the curves on either side at Booker (the difference in intercepts) is a visual approximation of the discontinuity estimated with RD.
230. Likewise, Panel 1B shows some suggestive, but weak, evidence that the black-white gap in offense levels may have increased in cases charged immediately after Booker: the point estimates for the growth in disparity range from 0.3 to 1.1 levels, but these are only even marginally significant in two specifications. If there were an increase in offense-level disparity, it might well be the product of the increase in mandatory minimum charging disparity, because the ultimate offense level is affected by any mandatory minimums that apply.
231. If one looks at all departures, there is still no significant rise in disparity.
232. We treat departures as a binary variable here, but one sees similar patterns in departure size.
233. See Max M. Schanzenbach & Emerson H. Tiller, Strategic Judging Under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence, 23 J.L. Econ. & Org. 24, 28-29 (2006).
234. As discussed above, survey data show that most judges do not diverge from the plea stipulations very often-but that does not mean they never do. The reason they choose to do so in particular cases might be the same reason they might consider departing: dissatisfaction with the sentence that the facts in the plea agreement would produce according to the Guidelines.
235. Although we did not include an additional graph, in Panel 3A, we also show changes in the final mandatory minimum when the sentencing date passes Booker. This variable can also be understood to reflect potential changes in fact-finding. The mandatory minimum can be affected by events at the sentencing stage in some contexts, because judicial fact-finding sometimes determines whether mandatory minimums apply. The most important example of this is drug quantity, which is not always stipulated in a guilty plea to a drug trafficking charge. We do not find any significant racially disparate changes in this variable occurring in cases sentenced after Booker. If anything, disparity may have declined, but just as with the offense level variable, the change is insignificant in all four specifications. However, there is a statistically significant overall increase in the mandatory minimum rate. One theory is that Booker led prosecutors to push more aggressively at the sentencing hearing for quantity findings that would trigger mandatory minimums.
236. Indeed, if anything, there is a visible upward turn in the white trend at Booker (although it does not amount to a discontinuous break), while the black sentence trend stays flat.
237. See Max M. Schanzenbach & Emerson H. Tiller, Strategic Judging Under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence, 23 J.L. Econ. & Org. 24, 28-29 (2006).
238. These breaking points were in six-month increments every January and July from 2002 through 2008, not including the months immediately following Blakely (July 2004), which we analyze separately below, and Booker (January 2005). Thus, the tests are also a check against the possibility that what appears to be a discontinuity caused by Booker is actually just a regular seasonal variation; if that were true, one would expect similar discontinuities in other Januaries.
239. Note that "false positives" are not necessarily the result of random noise; they could be the result of other influential events that happen to take place around the time of those breaking points.
240. Some observers believed that Blakely would be read to mean the prosecutor could not argue aggravating factors at sentencing unless they had been proven to the jury or pled to by the defendant. Two other circuits (outside our sample) had so held. See United States v. Ameline, 376 F.3d 967 (9th Cir. 2004).
241. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005). Such a rule would be expected to strengthen defendants' plea-bargaining leverage, because a prosecutor would likely often have to offer at least some compromise on aggravating factors in order to avoid a jury trial on them.
242. Under 18 U.S.C. § 3553(f), district courts may waive the mandatory minimum in certain drug trafficking cases involving nonviolent offenders with very little criminal history and no leadership role in a conspiracy, so long as the defendant has given the government a truthful and complete account of the crime.
243. We preferred to use a principal mandatory minimum measure that was determined by the charges of conviction (and findings of fact related to the crime's severity, such as drug quantity), rather than a measure also shaped by the other statutory factors that determine safety-valve eligibility. Our mandatory minimum variable is accordingly based on the sentencing judge's finding that there is an applicable mandatory minimum in the case. In some cases coded as having mandatory minimums, the minimums were ultimately waived under the safety valves or due to cooperation. At Blakely, there is no discontinuous change in non-waived mandatory minimums for either black or white defendants. In contrast, at Booker, there was a discontinuous spike in mandatory minimums for black defendants regardless of whether one codes the safety-valve cases as involving mandatory minimums.
244. This is a principal reason we do not simply use a short-window differences-in-differences approach-for instance, comparing the three months before Booker to the three months after. If we had, the Blakely effects would have been very different in the pre-and postperiods.
245. David S. Lee & Thomas Lemieux, Regression Discontinuity Designs in Economics, 48 J. Econ. Literature 281 (2010).
246. E.g., Ian Weinstein & Nathaniel Z. Marmur, Federal Sentencing During the Interregnum: Defense Practice as the Blakely Dust Settles, 17 Fed. Sent'g Rep. 51, 51 (2004) (predicting a decision by Thanksgiving). In the months after Booker, the archives of the leading sentencing blog include a series of predictions, citing informed observers in the legal community, that Booker would be decided the next day.
247. E.g., Douglas A. Berman, At Least One More Day to Wait Until Booker and Fanfan, Sent'g. L. & Pol'y (Dec. 7, 2004, 10:15 AM), http://sentencing.typepad.com/sentencing_law_and_policy/2004/12/theyre_here _emb.html ("I have now heard from a large group of insightful folks predicting that tomorrow will (finally) bring the decision.... At this point, I will believe it when I see it.").
248. Of course, it is theoretically possible that manipulation could have caused the case characteristics to vary only in unobservable ways, but this seems unlikely in practice. If there were substantial manipulation, it seems unlikely that it would not have had any effect on the distribution of observable case characteristics like case category and elapsed crime, nor on the case counts.
249. E.g., Douglas A. Berman, Not Yet for Booker and Fanfan, Sent'g L. & Pol'y (Nov. 9, 2004, 10:20 AM), http://sentencing.typepad.com/sentencing_law_and_policy/2004/11/not_yet _for_emb.html.
250. In any event, manipulation would only bias our results if it occurred in a racially disparate way. And the manipulation concern applies only to our analysis of sentencing responses to Booker-there is no reason to believe that any prosecutor would wait to charge or pleabargain a case until after Booker, nor would defendants likely take the large risk of stalling guilty pleas and risking their withdrawal while waiting for a Supreme Court decision.
251. See Alberto Gonzales, U.S. Att'y Gen., Prepared Remarks of Attorney General Alberto Gonzalez: Sentencing Guidelines Speech (June 21, 2005), http://www.justice.gov/archive /ag/speeches/2005/06212005victimsofcrime.htm.
252. Memorandum from John Ashcroft, U.S. Att'y Gen., to All Fed. Prosecutors, Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing (Sept. 22, 2003), http://www.justice.gov/opa/pr/2003/September/03_ag_516.htm.
253. Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 Stan. L. Rev. 1211, 1252 (2004).
254. Julie R. O'Sullivan, In Defense of the U.S. Sentencing Guidelines' Modified Real-Offense System, 91 Nw. U. L. Rev. 1342, 1425-26 (1997).
255. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
256. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1430 (2008).
257. 18 U.S.C. § 924(c) (2012).
258. In contexts such as employment and housing, disparity researchers can experimentally manipulate race while leaving other factors identical. See, e.g., Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937 (2003). The federal government uses "testers" (fake applicants) to enforce its discrimination statutes.
259. See Fair Housing Testing Program, U.S. Dep't Just., http://www.justice.gov/crt/about/hce/housing_testing.php (last visited Sept. 1, 2013). Similar field experiments in criminal justice would generally be illegal: a crime staged for research is still a crime, as is submitting fake information to authorities. But such studies could be legislatively authorized, under regulated conditions, and perhaps carried out by DOJ itself.