"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"

The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers.   Here is the abstract:

The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities.  However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact.  To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines.  We find that racial disparities are either reduced or little changed when the Guidelines are made less binding.  Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums.  Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.