Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing

Authors:
  • SBShawn D. Bushway
    Shawn D. Bushway
  • APAnne Morrison Piehl
    Anne Morrison Piehl
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Abstract
Variation in sentencing outcomes represents the actions of a number of members of the criminal justice system. To isolate the part of the variation that is due to the discretion of the judge (or other sentencing agent, such as a prosecutor), one can model the sentencing guidelines themselves. Such a model captures any non-linearity in the sentencing grid. In practice, modeling the guidelines rather than legal factor scores (as is common in the literature) means that more of the variation that race and legal factors share in common will be attributed to the racial status of the offender. Using data from Maryland, we find that African Americans have 20% longer sentences than whites, on average, holding constant age, gender, and recommended sentence length from the guidelines. We find more judicial discretion and greater racial disparity than is generally found in the literature. Moreover, when we begin to try to explain this discretion, we find that judges tended to give longer sentences (relative to those recommended by the guidelines) to people in the part of the guidelines grid with longer recommended sentences (who are disproportionately African American) than they gave to people in the part of the grid with lower recommended sentences.

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