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March 7, 2017

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

March 7, 2017 at 11:29 AM | Permalink


How about the lunch disparity, the nap disparity and data driven disparity? These are where sentences differ from the same judge before and after a sandwich, or with good sleep or without good sleep.

The remedy is a sentencing robot carrying out a legislated algorithm. Machines are all 100 times better than living being. Compare driving a car to riding a horse. We are still in the horse and buggy era in sentencing law and policy, using a class of judges who are old, stupid, crazy, and totally inconsistent with even themselves.

Posted by: David Behar | Mar 7, 2017 3:45:31 PM

Just a thought, but I would say that the most egregious disparity is the result of prosecutors decisions.

Posted by: beth | Mar 7, 2017 10:26:45 PM

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