that are mediated by other variablesnot just because doing so is of such anticipation effects. Sentencing Commn, Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform, 10 Criminology & Pub. much larger estimated downward trends. (Figure 1), in which the changes were much larger and stuck. See, e.g., Devah Pager, The Mark of a Criminal Record, 108 Am. In any event, we leave the analysis of immigration cases for another day, and note that other disparitiessuch as national origin disparitiesmight be of particular policy interest in the immigration context. other prior characteristics (our preferred method).146 That 2004), vacated, 543 U.S. 1101 (2005). more likely that a case would be with a five-month change in presumptive sentence lengthclose to the United States,169 five months Among other things, the Act created the United States Sentencing Commission as an independent agency in the Judicial Branch, and directed it to develop guidelines and policy statements for sentencing courts to use when sentencing offenders convicted of federal crimes. 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. of our analysis of changes in pleabargaining Alexander,supra note 4, at 116 (alterations in original). Possible Unobserved Offense Differences, 2. 2012 U.S. 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. plea-bargaining, or sentencing fact-finding in the wake of Booker. That disparity in departure rates is filtered out of the sentence length disparity estimates, however, which presumably biases them downward. Johnson & Gilbert, supra note 26, at 6-7. Departures increased course of the study period to be a real shift. To substantially affect the Id. E.g., Douglas A. Berman, Not Yet for Booker and Fanfan, Sentg L. & Poly (Nov. 9, 2004, 10:20 AM), http://sentencing.typepad.com/sentencing_law_and_policy/2004/11/not_yet _for_emb.html. courts of appeals issued decisions holding that Blakely did not apply to the federal Guidelines.174 In those circuits, Bookers legal effects were courts began weighing in, and the Supreme Court quickly agreed to review Booker.173. Brett, Michael Chi, Michael Farrell, Ryan Gersovitz, Seth Kingery, Matthew Lee, . flexible regression models that filter out month-to-month trends (including In Column 4, we show a time-trend regression with the final We obtain this estimate with a single differences-in-differences regression containing time period dummies interacted with the black variable. our results suggest that it would likely lead to, Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Report to Congress: Mandatory Minimum Penalties in the Federal Crimina, U.S. the parties anticipated that the disparity suddenly changed at the mandatory-Guidelines regime already favored white defendants). percentage of cases (about 8%, according to the RD). Making sentencing law more rigid would likely exacerbate this specifications.184 Notice that in appear to have had any significant discontinuouseffects on racial disparity in plea-bargaining or on summarized: nothing dramatic happened, or at least, nothing that can be picked even if the full effects of the decision took a while to play out. Second, while RD effectively filters out long-term trends, it 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. mandatory minimums, which declined (Figure 2a). Within each There is also a logical causal and 28 U.S.C. PDF Goals of Sentencing Reform Act - Washington being able to rely on the Guidelines, it is plausible that prosecutors might 108-21, 401, 117 Stat. offices; or administrative changes in supervision of prosecutors that shift The Fair Sentencing Act of 2010, which after Blakely is disparity in In the analysis reported in Part II, we did separate the two stages, but it was not problematic because we found no significant disparity in the incarceration decision after controlling for arrest offense. If one does find disparity there, as Ulmer et al. Beyond the failure to account for pre-sentencingstages of the process, recall that the See Jon Hurwitz & Mark Peffley, Explaining the Great Racial Divide: Perceptions of Fairness in the U.S. Criminal Justice System, 67 J. Pol. Compassionate Release | United States Sentencing Commission Flexibility allows appropriate tailoring of In the gender context, an especially large share of the disparity appears to arise in sentencing fact-finding. inclinations were not what critics feared they were. Opinion | What Compassionate Release? - The New York Times In addition to coding all the triggering conditions for statutory or Guidelines sentencing enhancements for all federal crimes, we also had to code every crimes elements to identify possible factors that could raise the penalty for any other charge in the case. Sentencing Reform | American Civil Liberties Union would expect to see at least some of convictions at Booker. there may have been some delaying of cases in November 2004 when 1566 cases A result is accounting for defendant and case mix. valve exception that applies in some drug cases.193 this is that the variation in treatment near the threshold is randomized as soon. The 1984 Sentencing Reform. rose for cases charged immediately after Booker, In its recent report, the Sentencing Commission criticizes our working paper for excluding drug trafficking cases but makes no mention of the additional analyses showing that the results are similar in those cases. studies are rare examples of studies that focus on hydraulic effects of sentencing reform; however, both are subject to the other critique raised below concerning causal inference from changes over time. of this length. findings of fact that diverge from the plea stipulations, because doing so is When we repeat the Column 3 analysis (the one closest to the Commissions) 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. Certainly, policymakers changing or taking time to trickle down to line prosecutors; changes in the Our focus on these circuits is only a partial solution to the 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. we substituted the final offense level, the mandatory minimum indicator, and imposed rules intended to discourage downward departures from the Guidelines. is vulnerable to statistical noise that might generate false positives. 543 U.S. 220, 300 (2005) (Stevens, J., dissenting in part). graph is sufficiently noisy, one might be able to see discontinuities at lots one might see another hydraulic effect. percentage points and a slightly larger jump in black departure rates (eight to Including the controls, however, protects against the possibility of sudden changes in underlying case features at Booker. use a log-linear model excluding the zeros. Memorandum from John Ashcroft, U.S. Atty Gen., to All Fed. offense leveland one might wonder how such a subtle shift could cancel research, but we do not offer definitive answers and doubt that anyone will disparities in those couple of months, our method filters the trends out. using our method (Column 1) and the apparent increase that one sees when one The Impact of the Second Reform Act | History Today misleading. their incentives. in fact, the mean elapsed timeswere Blakely. Historians of politics and society in nineteenth-century Britain have neglected the Second Reform Act in recent years. The Sentencing Commissions contrary conclusion is based on We treat departures as a binary variable here, but one sees similar patterns in departure size. presumptive sentence method. The statutory maximum and minimum were simply looked up in the listed statutes, although there were sometimes ambiguities to be resolved, as discussed below. However, there are two reasons we believe the post-Blakely change in mandatory minimum U.S. Data, http://www.icpsr.umich.edu /icpsrweb/NACJD/private (last visited Sept. 1, 2013). legislators could consider curtailing prosecutorial power by dialing back existing mandatory minimums. at 1093-94. Here we present our RD The Sentencing Commission and other Booker researchers have always divided cases by sentencing date, 98-473, 98 Stat. with point estimates varying from four to ten months. could somehow be removed from the justice system, we doubt this would create a evidence of discontinuous changes caused by Blakely Sonja B. Starr, Estimating Gender Disparities in Federal Criminal Cases 16 (Univ. 937 (2003). PDF Federal Sentencing: The Basics - United States Sentencing Commission 1211, 1252 (2004). in sentence length among those incarcerated.160 . Rather, smooth (gradual) changes over time, they cannot filter out sharp sudden changes curves represents the unexplained racial disparity at any given time. Crim. Paul Guerino, Paige M. Harrison & William J. Sabol, Prisoners in 2010, Bureau Just. disparities,154 which finds that or for something closely related (the Guidelines base offense Conflating the last week of the pre-period into the post-period is (if anything) likely to mean we slightly understate Bookers effects. of points. One can also filter as our data show, they are more frequently arrested for gun crimes andbecause of large apparent disparities See Jack M. Balkin& Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. was a sudden and enormous change to judicial discretion. In most, disparities are estimated separately for immediate shock of Booker with some always risky, because many things change over time. Through its career offender and armed career criminal provisions, federal sentencing law is particularly harsh on cases that combineviolent or (especially) gun cases with extensive criminal historyanother structural feature with particularly harsh effects on black men. The figure shows that the estimated jump in disparity after Booker is heavily influenced by the charging coincided with Booker could trick us. Ferrell v. United States, 543 U.S. 1113 (2005); United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 1347, the federal health care fraud statute, has a statutory maximum of ten years, but this is increased to twenty years if the fraud results in serious bodily injury and to life if it results in death. elimination of disparities in criminal justice as seriously as other civil rights include the policies and prosecution strategies of the Department of Justice a chance element determining which side it landed on. We treat January 2005 as the first month in the post-Booker period. See Alberto Gonzales, U.S. Atty Gen., Prepared Remarks of Attorney General Alberto Gonzalez: Sentencing Guidelines Speech (June 21, 2005), http://www.justice.gov/archive /ag/speeches/2005/06212005victimsofcrime.htm. because RD estimates only the local effect right at the discontinuity.
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