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April 15, 2017

"Sentencing Disparities"

The title of this post is the title of this new paper authored by Melissa Hamilton available via SSRN. Here is the abstract:

This Article is concerned with disparities in penalty outcomes.  More specifically, the study investigates upward departures in the federal guidelines-based sentencing system.  No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.

The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions.  Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).

The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects).  The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).

April 15, 2017 at 02:52 PM | Permalink


I recently read a "press release" by the author of the adam walsh act "james sensenbrenner"

You know the congressman doesn't really represent your interest. The reality is that its just a feel good news release and press release. Although many sex offenders are dangerous, most probably aren't. The word "sex" offender jumps out. In reality a "sex offender" could have urinated in the bushes,had teenage consensual sex (the awa exception is only 4 years), taking a selfie of "himself or herself" as a "non-nude teen" in a "suggestive pose" at 17 (considered child porn even if its self-made),etc.However, an ISIS torture video would not be considered "porn" or a parent beating their child even though its violent.

In fact there doesn't even need to be anything sexual, a 28 year old who grabbed a teenager's girl's arm and did nothing else just to lecture her to not play in the street since he slammed his brakes was labeled a sex offender for "kidnapping/false imprisonment". If you did it your niece or nephew same thing. Doesn't matter if its a few seconds in a public area.

May I ask this "feel good" congressman why aren't there violent offender registries? If one beats someone with a bat, robs them, impersonates a cop, or otherwise does non-sexual abuse to a person,or starts fires there is no registry for most states/and non at the federal level. In other words the DOJ/feds don't watch them. You would think if congress was really looking out for the public they would have implemented these offense in the last decade. Instead the word "sex" is a catchy phrase. Never-mind the repeat offense for those is higher.

The US government of course ignores those offenses and spends billions a year on many folks who pose much less harm.
In fact, the silliness doesn't stop there. The US government in the past has prosecuted a woman for "writing an explicit novel" but let "scooter libby of the hook. I'm talking under the bush administration under "obscenity". Even terrorism doesn't warranty that oversight. Under US law, a "sex offense" can you make you ineligible to sponsor someone even if they aren't say a child, but set fires,torture,murder,beatings,drugs and your mostly scoot free.

Also I don't get how the "commerce clause" applies, sure you need to travel states lines to commit a federal offense,but its not the "offense" itself its mere travel. If I drove across states and burglarized your home 20 years ago and the state decided to register that offender, how does mere travel trigger "commerce", unless the offense is related such as buying burglar tools. Can the feds punish you for violating state law once your just in the state because you committed an offense 20 years ago. Also shouldn't it be illegal say if you get a speeding a ticket for $50 pay it, then the state 10 years later says you owe $100, then 5 years after that says you owe $200,it seems criminal sanctions should be subject to even stricter scrutiny.

Posted by: ash | Apr 16, 2017 1:16:07 AM

I was going to criticize the author for not addressing the disparity of victimization when downward departures in sentencing take place. Downward departures are far more frequent than upward departures.

I may try to get in touch with the author and offer some of the legal brilliance stemming from my untouched high school education.

She is trying to be empirical, and should be supported and encouraged.

Posted by: David Behar | Apr 16, 2017 9:21:48 AM

Thank you Ash! Definitions are definitely important and if a person would research the original meaning of a word, term, or statement - they would find that it was changed for profit. For example: sexual assault referred to penetration, not touching (molestation) or elementary students at recess. How can one act have so many counts added by District Attorney's to enhance their chance for conviction and profit? Proper education is the ANSWER, if you have to do it yourself!

Posted by: LC in Texas | Apr 16, 2017 10:03:55 AM

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