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June 22, 2007

Some empirical realities of federal sentencing decision-making

Fortuitously timed in light of the Rita ruling, Max Schanzenbach and Emerson Tiller now have here posted on SSRN an important new paper entitled "Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform." Here is the abstract:

This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing – specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes.  More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court.  We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed).  We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system.

We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review.  We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.

Download it while Rita is hot....

June 22, 2007 at 10:11 AM | Permalink


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That's scary. Will judges have to pass some litmus test before being sworn in? "I swear I'm a liberal (or consecrative) and will balance the court."

The real battle is political and new laws can't fix that.

The problem with the Sentencing Commission is that it sits on the wrong foundation. Using 10,000 past sentences at least commits the fallacy of traditionalism, but more than that, it defines justice as judges define it and in a sense turns judges into the legislature: judges should sentence thusly because judges sentence thusly. That is what judges do, sentence justly, but punishment itself is subject to political ebb and flow.

More fundamental than that, and nation wide, is the actuarial foundations of the criminal justice system today. Since every criminal could possibly commit another crime under this system, it is easier to equate them all to murderers. This is most obvious in sex offender laws, where every offender is a potential child rapist/murderer, but the same bias infects the sentencing of other offenders. Justice becomes a probability and is not based on actual harm done, but is based on some fuzzy math potential. The very real and logical focus on recidivism gives this Minority Report philosophy credence.

Christopher P. Wilson does an excellent job of deconstructing the neo-conservative actuarial rhetoric in Cop Knowledge, in particular Chapter 5 where he discusses James Q. Wilson's "broken window" policy. ["Rather, the young street criminal was seen as on the verge of intentionally expanding his criminal resume and repertoire. In effect, Wilson simply anticipated the actuarial table and headed back to the perpetrator ready to fill it out" (p 180).]

Justice based on fuzzy math is bound to result in convoluted laws and judicial opinions. Even if the "broken window" policy is partially valid, there is no room in the Bill of Rights for an actuarial justice system. When the courts affirm this policy, it amounts to a "broken rights" policy. James Q. Wilson's argument in its logical conclusion is a argument for a genetic predisposition for crime, environmental factors be damned, and that is why the government collecting DNA from criminals could be dangerous in the future.

Posted by: George | Jun 22, 2007 1:56:55 PM

About the sex offender law you mentioned. This is in regards to the eye for eye slogan I have heard mentioned. Say that a person is accused of a sex crime and in in terms of an eye for an eye. The victim does the same in return to your 6 year old son. Just to make it interesting the victim is now employed by law enforcement. Does that make the eye for eye law justifiable.

Posted by: | Jun 23, 2007 3:23:41 AM

I know what you mean. I heard that people who represent certain states-lets say law dogs or people with fake mentality of being god get a stiffer sentence for slandering the states name. You a represenative of the law you represent your state as well. So say the a law dog molested my son because of a previous conviction and then refused him medical attention more than once on the same day then...... Thats a big hit with whom he represents. Or refusing his right to freedom of speech or even threatening his sons life if I went to the proper authorities. What do you think about this issue.....
By the way it is a true story... as true as I was molested when I was growing up... Do you feel that because someone reoresents the law then they should be able to do what ever they want. I mean like after you get a badge you can break the laws you are suppose to uphold. What kinda of shit is that.. Sorry but a sensitive subject because I was thrown in my face that I could not do a thing to him because the person is the law. That was in reference to what happened to my son!!!!!!

Posted by: | Oct 17, 2007 6:15:48 PM

Ok I reread your post and did not bother to do it the second blog. As you know over the past (2)
decades we have stepped into a new era of technology. The same rules must apply to the old ones. So if you molest a child over "my child" some new technology whats the difference. I have a long conversation with my son about who was doing it and the person claimed to him that they were god is O.K. By the way who in there right mind would use God as a subject to do those things. I walk into the shower to check on my son and hes holding his pecker in his hands looking for something. I know it sounds crazy but you know todays technology, there is no boundaries when it comes to that. The investigation process has modernized to a high tech division. I have done some research on it and it dates back to earlier dates. The only thing I could find is certain organizations using the methods I am refering to to interogate prisoners. But I found nothing in the area of ever using someones son or daughter to gather info. What gets me is I tried two or three times that day to take my son to the medical room. The further I got the more threats I got on my son. Like I said technology is a trip today. We could not hear one another and his eyes were so dialated and his heart pounding like he was on something. Interogation C'mon.. Then to threaten my life and his if anything was ever said about it C'mon.... The thing is it was well thought out and well prepared for. I think to my past and it reminds me of my youth. Theres a lot to my story. I have tried to contact people in order to get it of my chest but have had no success in doing so. Even mentioned it to a law dog and was completely ignored on the issue. The things that happened to me in my youth was very personal but now that that happenedd to my son it answered a lot. How pissed off would you be if your son or daughter tried or did throw their tongue down you throat.He was six when that happened. Theres other incidents to. But really got me is when they said and I quote,"you cant do a fucking thing because I am the law, ha ha now your son is your fucking clone." Maybe not in those words but close enough. You tell me if someone was to do those things to my son and thats just small compared to the other incidents I will not explain to you on here. Whos the one with the issues. What if the person is doing it to others or on every case. You tell me you have my email and it is chino160@hotmail.com. I have been threatened and if something happens to me so be it. But I will get this out in the open if my life depends on it..

Posted by: | Oct 17, 2007 6:44:41 PM

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