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February 21, 2014

Notable New Yorker piece reporting on forthcoming federal judicial sentencing patterns

A helpful reader altered me to this notable new piece about sentencing policies and practices from The New Yorker authored by Columbia Law Prof Tim Wu. The full piece ends by stressing one concern I often express about the challenge of using mandatory sentencing laws to try to deal with concerns about judicial sentencing disparity — namely "that they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges."  But the piece caught my attention late on a Friday afternoon mostly because of this discussion of some notable forthcoming research on modern federal sentencing patterns:

Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this.  A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.

The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced” — as much as eleven months, on average. The results are all statistically significant, according to Yang — and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.

Of course, all sophisticated federal sentencing practitioners know that in all cases, not just those "on the edge," the "identity of your judge might make an important difference." And I regularly tell law students that every federal defendant ought to realize from the moment he or she is subject to a federal investigation, in all cases, not just those "on the edge," the identity of the prosecutor and probation officer and defense attorney also "might make an important difference." Consequently, I am not sure Crystal Yang's "giant, forthcoming study of the federal judiciary" is likely to tell us a lot that we do not already suspect or know.

That all said, I am already jazzed to hear a lot more about what Crystal Yang has collected and analyzed concerning the federal sentencing of "more than six hundred thousand convicted defendants between 2000 and 2009"!  That is a whole lot of data, and it spans a remarkable decade in federal sentencing developments which included the passage of the PROTECT Act and the transformation of federal sentencing law and practices wrought by Blakely and Booker and its progeny.

UPDATE:  After doing a little research, I think I discovered that an updated version of Crystal Yang's research discussed above is now available here at SSRN, and is soon to be published in the New York University Law Review.

February 21, 2014 at 05:26 PM | Permalink

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Comments

I think the study would be off by a huge margin, if it looked at judge Linda R Reade in the northern district of Iowa. Wew. Lucky she doesn't dish out the statutory max and turn and walk out of the court room.

Anyone ever get a fair shake with this judge. She is so pro government, it's simply a pound and paint it for the AUSA. It's a tag Team.

Posted by: Midwest Guy | Feb 21, 2014 11:06:48 PM

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