Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker

The Impact ofUnited States v. BookerandGall/Kimbrough v. United Stateson Sentence Severity

“…Most studies have used departure status as a control measure, on the assumption that controlling for departures would result in a conservative estimate of extralegal variables. However, at least for the current research purpose, we agree with Engen (2009) and others (Freeborn & Hartmann, 2010;Fischman & Schanzenbach, 2011Starr & Rehavi, 2012), in that controlling for departure status, especially when examining the impact of Booker and Gall on sentence practice, and sentence severity particularly, would lead one to curtail the major sources of changes in sentencing practice. Therefore, we decided not to control for departure status in our model.…”

“…Accordingly, any changes stemming from prosecutors' decisions that are linked to a mandatory minimum are reflected in the results. Although two recent studies suggest that Booker and Gall affected prosecutors' behavior related to the application of a mandatory minimum, not necessarily charging reductions (Fischman & Schanzenbach, 2012;Starr & Rehavi, 2012), failure to control for any changes in charge reductions is clearly a limitation.…”

“…Once we establish that there is a statistically significant random effect to be explained, we test our third hypotheses by adding into the equation a group of W j , measures that capture percent Black, disadvantage, and conservatism into Equation 5. Recent discourse on sentencing research has been centered upon the appropriate methodological strategies that should be assumed to capture whether Booker and Gall affected sentencing discretion (for competing analytic strategies, see Starr & Rehavi, 2012;Ulmer et al, 2011aUlmer et al, , 2011b. Critics charge that studies should not control for sentencing departures and mandatory minimum status, as these variables are endogenous to the Booker and Gall decisions (Fischman & Schanzenbach, 2012;Engen, 2011).…”

“…Indeed, crime and justice scholars have amassed a fairly large body of research evaluating post- Booker and post- Gall sentence outcomes. And with few exceptions, these studies reveal that these legal contingencies in U.S. District Courts have not substantially altered judicial decision making and that unwarranted disparity has not increased (Fischman & Schanzenbach, 2012; Scott, 2010; Starr & Rehavi, 2012; Tiede, 2009; Ulmer & Light, 2010, 2011; Ulmer, Light, & Kramer, 2011a, 2011b; but see U.S. Sentencing Commission [USSC], 2010, 2012).…”

Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing

“…However, conditional on being convicted of a charge that carries a mandatory minimum, deci-32 These findings are somewhat consistent with those of Starr and Rehavi (2012) who use a regression discontinuity design and find a temporary increase in mandatory minimums for black defendants charged immediately after Booker, but no differential long-term change between black and white defendants after Booker.…”