Modeling Discretion in American Sentencing Systems

Abstract

Sentencing structures in American jurisdictions have become extraordinarily diverse in the past twenty‐five years. Any one punishment structure, such as the federal sentencing guidelines system, the guidelines system of a particular state, or the indeterminate sentencing plan still followed in many states, contains layers of complexity and a multiplicity of decision makers who hold discretion over sentencing outcomes. Increasingly, conceptual tools are needed to analyze and evaluate the similarities and differences across many systems. The author develops basic theoretical tools to describe the building blocks of various up‐and‐running sentencing structures, with close attention to the permutations of discretions that add up to define sentencing outcomes. Such basic conceptual tools can facilitate observations about single systems and can enable comparative analyses of numerous systems. Further, the author suggests that there are both descriptive and normative principles that can be applied to the structural machinery of sentencing systems. With increasing experience, we are learning that some such innovations work better than others.

Judicial Rotation as Centripetal Force: Sentencing in the Court Communities of South Carolina*

“…The findings offer several contributions to the sentencing field: They advance the court communities literature by exploring system features that pull courts toward greater uniformity rather than diffusion, and they demonstrate the importance of a structural characteristic, judicial rotation, which has defining sentencing policy implications. Scholars have called both for a renewal of studies aimed at engaging in qualitative analysis to supplement quantitative findings and for studies aimed at a broader variety of jurisdictional contexts (e.g., Baumer, ; Engen, ; Reitz, , ). Through the current study, I answer both of these calls and provide a clearer understanding of sentencing practices in this nonguidelines state.…”

The “Liberation” of Federal Judges’ Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence between Courts?

“…Offenders' exposure to Guideline punishments is to a great extent (but not totally) a product of prosecutors' charging decisions and the plea agreement process, in which negotiated stipulations about Guideline-relevant conduct and offense-specific behavior (which raise or lower the final offense level) are commonplace (Ulmer, 2005;. It has been long recognized that changes in sentencing schemes affect the distribution of discretion among court actors (Engen, 2009;Reitz, 1998). It may be that federal prosecutors' decisions and behavior in the charging and plea agreement process have changed significantly in the wake of Booker and Gall, and changed in non-uniform ways.…”

Racial disparity in the wake of the Booker/Fanfan decision

“…However, offenders’ exposure to Guidelines punishments is to a great extent a product of prosecutors’ charging decisions and the plea agreement process, in which negotiated stipulations about Guidelines‐relevant conduct and offense‐specific behavior (which raise or lower the final offense level) are commonplace (Shermer and Johnson, 2010; Ulmer, 2005; Ulmer et al, 2010). It has been long recognized that changes in sentencing schemes affect the distribution of discretion among court actors (Engen, 2009; Reitz, 1998), and it is likely that federal prosecutors’ decisions and behavior in the charging and plea agreement process have changed significantly in the wake of Booker and have changed in nonuniform ways. Some evidence for this is found in our results for substantial‐assistance, government‐sponsored, and fast‐track departures.…”