Judicial Sentencing After the Booker/Fanfan Decision

Jeffery Todd Ulmer (Penn State University), Michael Thomas Light (Penn State University), John H Kramer , and James Eisenstein have posted Does Increased Judicial Discretion Lead to Increased Disparity? the 'Liberation' of Judicial Sentencing Discretion in the Wake of the Booker/Fanfan Decision on SSRN. Here is the abstract:

The Unites States 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 U.S 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 wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. We frame the question of the impact of the Booker/Fanfan decisions on inter-jurisdictional variation and sentencing disparity as an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan. 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 hypotheses using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the early and later post-Booker/Fanfan period (2006-2007, and 2008). We find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker. We also explain why our findings contrast with the March 2010 USSC report updating the analysis of sentencing post-Booker. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.