Abstract
Disparity in sentencing outcomes continues to garner considerable attention in the research literature. Much of the extant literature focuses on the impact of case-level, and to a lesser extent, court-level characteristics on individual sentencing outcomes. At the federal level, recent research by the United States Sentencing Commission (USSC), however, demonstrates significant disparity across U.S. District Courts in aggregate-level outcomes. Specifically, there is considerable disparity in the rates of judge-initiated guidelines departures across U.S. District Courts. The current study examines whether judicial composition and caseload characteristics impact this disparity using panel data. Results indicate that judicial sex and political composition of districts influence judge-initiated guidelines departure rates.
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Notes
Our analysis focuses on downward departures, rather than upward departures, due to the relative infrequency of the latter, for which the rate was approximately two percent over the course of the time period studied.
Within the judicial politics literature, researchers commonly use the political party of the appointing president to measure judges’ political ideology (Epstein et al., 2013); however, others have questioned the validity of using appointing presidents’ political party to measure judges’ ideology (Hübert & Copus, 2021) and outlined other measures, including those utilizing judicial votes (see Ho & Quinn (2010) for a thorough discussion). This debate is beyond the scope of the current study. Instead, we use on the political party of the appointing president to create a measure of the political composition of the courts rather than political ideology.
The MFCS data are compiled and prepared by the United States Sentencing Commission and is available through the Inter-University Consortium for Political and Social Research (ICPSR): https://www.icpsr.umich.edu/web/ICPSR/series/83
Consistent with prior sentencing research examining federal sentencing, we excluded the following districts: Puerto Rico, Guam, Virgin Islands, Northern Mariana Islands, and the District of Columbia.
When senior status date preceded a judge’s termination date, we used the former as the date on which a judge was no longer serving as a judge on that district court. Senior status allows judges who meet service and age criteria to handle a reduced caseload, while still receiving full salary; however, when a judge takes senior status, a vacancy on the court is created which is filled through the normal process. Senior status judges are less active and present on the court (handling only approximately 20% of total district and appellate courts’ caseloads; see https://www.uscourts.gov/judges-judgeships/about-federal-judges). Therefore, we determined that the judicial composition of a district is better represented by the judges on full, active status rather than including senior status judges (see Schanzenbach & Tiller, 2007 for a similar approach).
Below guideline range and above guideline range categories capture both judge-initiated departures and judge-initiated deviations from the guidelines. The former captures sentences in which the judge sentences above or below the guideline range for “reasons that the USSC recognizes as legitimate” whereas the latter are sentences in which the judge sentences above or below the guideline range for reasons that are not recognized by the USSC (Ulmer & Johnson, 2019, footnote 12). Consistent with Ulmer & Johnson, we conceptualize both departures and deviations as judge-initiated departures.
Includes 5K1.1/Substantial Assistance, Early Disposition/5K3.1, and Government Sponsored-Below Range sentences.
We also estimated models including the percent of the district cases that were immigration cases and the percent of cases involving non-citizens, which produced very similar results. However, both variables were highly collinear with percent Hispanic. As such, our final models included only percent Hispanic and the control for border districts, which account for the vast majority of immigration cases throughout the district courts (https://www.uscourts.gov/news/2013/05/08/southwest-border-courts-continue-lead-immigration-cases).
Mean presumptive sentence and caseload were both transformed by dividing them by 1000 for the panel model estimation to enable the Hausman test to function properly and for ease of reporting in tables.
Results from estimation of a fixed effects model were substantively very similar to those reported above for the random effects model. In the fixed effects model, the coefficient for Caseload was not significant, whereas the coefficients for both Female Cases and White Cases were significant.
The authors thank one of the anonymous reviewers for suggesting this possibility.
References
Albonetti, C. A. (1998). The role of gender and disparities in the sentencing of defendants convicted of a white-collar offense under the federal sentencing guidelines. Sociology of Crime, Law, and Deviance, 1, 3–48.
Bell, A., & Jones, K. (2015). Explaining fixed effects: Random effects modeling of time-series cross-sectional and panel data. Political Science Research and Methods, 3(1), 133–153.
Boyd, C. L. (2016). Representation on the Courts? The effects of trial judges’ sex and race. Political Research Quarterly, 69, 788–799.
Boyd, C. L., Epstein, L., & Martin, A. D. (2010). Untangling the causal effects of sex on judging. American Journal of Political Science, 54(2), 389–411.
Brame, R., Paternoster, R., Mazerolle, P., & Piquero, A. (1998). Testing for the equality of maximum-likelihood regression coefficients between two independent equations. Journal of Quantitative Criminology, 14(3), 245–261.
Brame, R., Bushway, S., & Paternoster, R. (1999). On the use of panel research designs and random effects models to investigate static and dynamic theories of criminal offending. Criminology, 37(3), 599–642.
Cohen, A., & Yang, C. S. (2019). Judicial politics and sentencing decisions. American Economic Journal: Economic Policy, 11(1), 160–191.
Collins, T., & Moyer, L. (2008). Gender, race, and intersectionality on the federal appellate bench. Political Research Quarterly, 61, 219–227.
Collins, P. M., Jr., Manning, K. L., & Carp, R. A. (2010). Gender, critical mass, and judicial decision making. Law & Policy, 32(2), 260–281.
Crow, M. S. (2008). The complexities of prior record, race, ethnicity, and policy: Interactive effects in sentencing. Criminal Justice Review, 33(4), 502–523.
Crow, M. S., & Johnson, K. A. (2008). Race, ethnicity, and habitual-offender sentencing: A multilevel analysis of individual and contextual threat. Criminal Justice Policy Review, 19(1), 63–83.
Davis, S. (1992). Do women judges speak in a different voice–Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit. Wis. Women’s Law Journal, 8, 143.
Dixon, J. (1995). The organizational context of criminal sentencing. American Journal of Sociology, 100(5), 1157–1198.
Doerner, J. K., & Demuth, S. (2010). The independent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in US federal courts. Justice Quarterly, 27(1), 1–27.
Eisenstein, J., Flemming, R. B., & Nardulli, P. F. (1988). The contours of justice: Communities and their courts. Little Brown.
Engen, R. L., & Gainey, R. R. (2000). Modeling the effects of legally relevant and extralegal factors under sentencing guidelines: The rules have changed. Criminology, 38(4), 1207–1230.
Epstein, L., Martin, A. D., Quinn, K. M., & Segal, J. A. (2013). Ideology and the study of judicial behavior. In J. Hanson and J. Jost (Eds.), Ideology, psychology, and law (pp. 705–728). Oxford University Press.
Everett, R. S., & Wojtkiewicz, R. A. (2002). Difference, disparity, and race/ethnic bias in federal sentencing. Journal of Quantitative Criminology, 18(2), 189–211.
Farhang, S., & Wawro, G. (2004). Institutional dynamics on the US court of appeals: Minority representation under panel decision making. Journal of Law, Economics, and Organization, 20(2), 299–330.
Farrell, A. (2004). Measuring judicial and prosecutorial discretion: Sex and race disparities in departures from the federal sentencing guidelines. Justice Research and Policy, 6(2), 45–78.
Farrell, A., Ward, G., & Rousseau, D. (2009). Race effects of representation among federal court workers: Does black workforce representation reduce sentencing disparities? The Annals of the American Academy of Political and Social Science, 623(1), 121–133.
Farrell, A., Ward, G., & Rousseau, D. (2010). Intersections of gender and race in federal sentencing: Examining court contexts and the effects of representative court authorities. The Journal of Gender, Race & Justice, 14(1), 85–126.
Fearn, N. E. (2005). A multilevel analysis of community effects on criminal sentencing. Justice Quarterly, 22(4), 452–487.
Feldmeyer, B., & Ulmer, J. T. (2011). Racial/ethnic threat and federal sentencing. Journal of Research in Crime and Delinquency, 48(2), 238–270.
Flemming, R., Nardulli, P., & Eisenstein, J. (1992). The craft of justice: Politics and work in criminal court communities. Pennsylvania University Press.
Goulette, N., Wooldredge, J., Frank, J., & Travis, L. F. (2015). From initial appearance to sentencing: Do female defendants experience disparate treatment? Journal of Criminal Justice, 43, 406–417.
Gruhl, J., Spohn, C., & Welch, S. (1981). Women as policymakers: The case of trial judges. American Journal of Political Science, 25, 308–322.
Gryski, G. S., Main, E. C., & Dixon, W. J. (1986). Models of state high court decision making in sex discrimination cases. The Journal of Politics, 48(1), 143–155.
Gujarati, D. (2003). Basic Econometrics (4th ed., pp. 638–640). McGraw Hill.
Haire, S. B., & Moyer, L. P. (2015). Diversity matters: Judicial policy making in the US courts of appeals. University of Virginia Press.
Halaby, C. N. (2004). Panel models in sociological research: Theory into practice. Annual Review of Sociology, 30, 507–544.
Harris, A. P., & Sen, M. (2019). Bias and judging. Annual Review of Political Science, 22, 241–259.
Hartley, R. D., & Tillyer, R. (2019). Interdistrict variation and disparities in federal sentencing outcomes: Case types, defendant characteristics, and judicial demography. Criminology, Criminal Justice, Law & Society, 20(3), 46–63.
Heumann, M. (1978). Plea bargaining: The experiences of prosecutors, judges, and defense attorneys. The University of Chicago Press.
Ho, D. E., & Quinn, K. M. (2010). How not to lie with judicial votes: Misconceptions, measurement, and models. California Law Review, 98(3), 813–876.
Hofer, P. J., Loeffler, C. E., Blackwell, K., & Valentino, P. (2004). Fifteen years of guidelines sentencing: An assessment of how well the federal criminal justice system is achieving the goals of sentencing reform. United States Sentencing Commission.
Holmes, B., & D’Amato, C. (2020). Judicial and prosecutorial decision-making: Assessing the effects of race, gender, and age on federal downward sentencing departures, 2013–2016. Journal of Crime and Justice, 43, 449–466.
Hsiao, C. (2007). Panel data analysis—advantages and challenges. TEST, 16(1), 1–22.
Hübert, R., & Copus, R. (2021). Political Appointments and Outcomes in Federal District Courts. April 27, 2021 Retrieved from: https://ryanhubert.com/files/hubert_copus_web.pdf
Johnson, B. D. (2006). The multilevel context of criminal sentencing: Integrating judge- and county-level influences. Criminology, 44, 259–298.
Johnson, B. D. (2014). Judges on trial: A reexamination of judicial race and gender effects across modes of conviction. Criminal Justice Policy Review, 25(2), 159–184.
Johnson, B. D., Ulmer, J. T., & Kramer, J. H. (2008). The social context of guidelines circumvention: The case of federal district courts. Criminology, 46(3), 737–783.
Kaiser, K., & Spohn, C. C. (2018). Why do judges depart: Review of reasons for judicial departures in federal sentencing. Criminology, Criminal Justice, Law & Society, 19(2), 43–62.
Kastellec, J. P. (2013). Racial diversity and judicial influence on appellate courts. American Journal of Political Science, 57(1), 167–183.
Kastellec, J. P. (2016). Race, context, and judging on the Courts of Appeals: Race-based panel effects in death penalty cases. Justice System Journal, 1–22.
Kautt, P. M. (2002). Location, location, location: Interdistrict and intercircuit variation in sentencing outcomes for federal drug-trafficking offenses. Justice Quarterly, 19(4), 633–671.
Krislov, S. (1974). Representative bureaucracy. Englewood Cliffs.
Kritzer, H. M., & Uhlman, T. M. (1977). Sisterhood in the courtroom: Sex of judge and defendant in criminal case disposition. Social Science Journal, 14, 77–88.
Liu, C. (2020). Judge political affiliation and impacts of corporate environmental litigation. Journal of Corporate Finance, 64, 1–21. https://doi.org/10.1016/j.jcorpfin.2020.101670
Menkel-Meadow, C. (1989). Exploring a research agenda of the feminization of the legal profession: Theories of gender and social change. Law & Social Inquiry, 14(2), 289–319.
Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21(4), 439–466.
Muhlhausen, D. B. (2004). The determinants of sentencing in Pennsylvania: Do the characteristics of judges really matter? Center for Data Analysis (Report No. 04–02). Washington, DC: The Heritage Foundation.
Mustard, D. B. (2001). Racial, ethnic, and gender disparities in sentencing: Evidence from the US federal courts. The Journal of Law and Economics, 44(1), 285–314.
Nagel, I. H., & Schulhofer, S. J. (1992). A tale of three cities: An empirical study of charging and bargaining practices under the federal sentencing guidelines. Southern California Law Review, 66, 501–566.
Nardulli, P., Eisenstein, J., & Flemming, R. (1988). Tenor of justice: Criminal courts and the guilty plea process. University of Illinois Press.
Peresie, J. L. (2005). Female judges matter: Gender and collegial decision-making in the federal appellate courts. Yale Law Journal, 114(7), 1759–1790.
Pew Research Center (2016, July 7). Top voting issues in 2016 election. https://www.pewresearch.org/politics/2016/07/07/4-top-voting-issues-in-2016election/
Pew Research Center (2020, August 13). Important issues in the 2020 election. https://www.pewresearch.org/politics/2020/08/13/important-issues-in-the2020election/
Richardson, R. J., & Vines, K. N. (1970). The politics of federal courts. Little Brown.
Robinson, R. (2012). Executive branch socialization and deference on the U.S. Supreme Court. Law & Society Review, 46(4), 889–921.
Schanzenbach, M. (2005). Racial and sex disparities in prison sentences: The effect of district-level judicial demographics. The Journal of Legal Studies, 34(1), 57–92.
Schanzenbach, M. M. (2015). Racial disparities, judge characteristics, and standards of review in sentencing. Journal of Institutional and Theoretical Economics (JITE), 171(1), 27–47.
Schanzenbach, M. M., & Tiller, E. H. (2007). Strategic judging under the US sentencing guidelines: Positive political theory and evidence. THe Journal of Law, Economics, & Organization, 23(1), 24–56.
Scherer, N. (2004). Blacks on the Bench. Political Science Quarterly, 119(4), 655–675.
Spohn, C. C. (1990a). The sentencing decisions of Black and White judges: Some expected and unexpected similarities. Law and Society Review, 24, 1197–1216.
Spohn, C. C. (1990b). Decision making in sexual assault cases: Do Black and female judges make a difference? Women and Criminal Justice, 2, 83–105.
Steffensmeier, D., & Britt, C. L. (2001). Judges’ race and judicial decision making: Do Black judges sentence differently? Social Science Quarterly, 82, 749–764.
Steffensmeier, D., & Demuth, S. (2000). Ethnicity and sentencing outcomes in US federal courts: Who is punished more harshly? American Sociological Review, 65, 705–729.
Steffensmeier, D., & Herbert, C. (1999). Women and men policymakers: Does the judge’s gender affect the sentencing of criminal defendants? Social Forces, 77, 1163–1196.
Torres-Reyna, O. (2007). Panel data analysis. Fixed & Random Effects [online] Available at:< http://dss.princeton.edu/training/Panel101.pdf>. Accessed Dec 9, 2020
Uhlman, T. (1978). Black elite decision making: The case of trial judges. American Journal of Political Science, 22, 884–895.
Ulmer, J. T. (1997). Social worlds of sentencing: Court communities under sentencing guidelines. SUNY Press.
Ulmer, J. T., Eisenstein, J., & Johnson, B. D. (2010). Trial penalties in federal sentencing: Extra-guidelines factors and district variation. Justice Quarterly, 27(4), 560–592.
Ulmer, J. T., & Johnson, B. D. (2019). Organizational conformity and punishment federal court communities and judge-initiated guidelines departures. Journal of Criminal Law and Criminology, 107(2), 253–292.
Ulmer, J. T., & Kramer, J. H. (1998). The use and transformation of formal decision-making criteria: Sentencing guidelines, organizational contexts, and case processing strategies. Social Problems, 45(2), 248–267.
Ulmer, J., Light, M. T., & Kramer, J. (2011). The “liberation” of federal judges’ discretion in the wake of the Booker/Fanfan decision: Is there increased disparity and divergence between courts? Justice Quarterly, 28(6), 799–837.
United States Sentencing Commission (2020a). Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005–2007. Washington, DC.
United States Sentencing Commission (2020b). Federal Sentencing: The Basics. Washington, DC.
Vigorita, M. S. (2001). Prior offense type and the probability of incarceration: The importance of current offense type and sentencing jurisdiction. Journal of Contemporary Criminal Justice, 17(2), 167–193.
Walker, T., & Barrow, D. (1985). The diversification of the federal bench: Policy and process ramifications. Journal of Politics, 47, 596–617.
Ward, G., Farrell, A., & Rousseau, D. (2009). Does racial balance in workforce representation yield equal justice? Race relations of sentencing in federal court organizations. Law & Society Review, 43, 757–806.
Welch, S., Combs, M., & Gruhl, J. (1988). Do black judges make a difference? American Journal of Political Science, 32, 126–136.
Williams, J. C. (1988). Deconstructing gender. MICH. I rEv., 87, 797.
Wooldredge, J., Frank, J., & Goulette, N. (2017). Perspectives informing defense attorney effects on criminal case outcomes. In Mindy S. Bradley & Jeffrey Ulmer (Eds.), Punishment Decisions: Locations of Disparity, Handbook on Corrections and Sentencing, Vol. 2.
Wooldridge, J. M. (2013). Introductory econometrics: A modern approach (5th ed.). Nashville: South Western College Publications.
Wu, J., & Spohn, C. (2009). Interdistrict disparity in sentencing in three U.S District Courts. Crime & Delinquency, 56, 290–322.
Zatz, M. (2000). The convergence of race, ethnicity, gender, and class on court decision making: Looking toward the null. In Policies, processes and decisions of the criminal justice system. (Vol.) Criminal justice 2000. Washington, DC: US Department of Justice.
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Crow, M.S., Goulette, N. Sex, Politics, and U.S. District Court Outcomes: Examining Variation in Judge-Initiated Downward Guideline Departures. Am J Crim Just 48, 295–318 (2023). https://doi.org/10.1007/s12103-021-09648-3
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DOI: https://doi.org/10.1007/s12103-021-09648-3