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In November 2017, the U.S. Sentencing Commission issued the third in a series of reports examining the
correlation of demographic factors, most notably race, and the length of sentence in federal criminal cases in
the years after the Supreme Court’s 2005 decision in United States v. Booker. The Booker decision made the
U.S. Sentencing Guidelines advisory rather than mandatory and therefore gave federal judges greater discretion
at sentencing. All three reports, including the most recent, make the claim that “the gap between the sentence
lengths for Black and White male offenders [has] increas[ed]”1 following Booker.
These findings have been cited by proponents of mandatory sentencing regimes. Most notably, the Hon.
William Pryor, acting Chair of the Sentencing Commission, has recently called for a new mandatory Guidelines
system, claiming that “the advisory system” has resulted in “growing disparities,” and that Commission
analyses “establish that . . . differences in sentence length are associated with race and gender.”2
In fact, the sentencing gap between White and Black defendants has decreased significantly since Booker was
decided 12 years ago. The claim that increased judicial discretion has led to increased disparity is based on a
controversial statistical model, which has been sharply criticized by credible outside researchers. The criticisms
include the Commission’s failure to account for: (1) the impact of mandatory minimums, which constrain
judicial discretion and disparately prevent reductions in sentence for black defendants, (2) racial disparities in
prosecutors’ charging and bargaining decisions, and (3) the adverse racial impact of unsound rules in the
Sentencing Guidelines. These failures in methodology have been repeatedly noted, but the Commission has
not adequately addressed the criticisms, adapted its model, or properly tested its robustness and limits.
Racial disparity is a serious problem in the federal criminal justice system. Nearly 78 percent of federal
defendants are non-White or Hispanic, and mandatory minimums are disproportionately charged against Black
defendants. While many studies have shown that racial bias infects most aspects of human behavior (and is
surely present among lawyers and judges), the suggestion that increased judicial discretion leads to greater
racial disparity in the criminal justice system is simply wrong. Constraining judicial discretion only exacerbates
unjust sentencing rules and biased enforcement and charging decisions.
The most problematic sources of unwarranted racial disparity today are mandatory minimums and prosecutorial
decisions, not judicial discretion. A mandatory Guidelines scheme would amount to mandatory minimums in
all cases and transfer control over all sentences to prosecutors. Unfortunately, the Commission’s report
selectively highlights data it claims to show racial disparity in judges’ exercise of discretion, while omitting or
minimizing data showing greater racial disparity in prosecutorial decision-making.
The Sentencing Commission should focus its efforts on reducing racial disparity that is built into the Sentencing
Guidelines. The severity of the Guidelines and their over-emphasis on unjust rules are significant drivers of
unwarranted racial disparity. For example, criminal history increases guideline sentences in multiple ways,
often exponentially. As numerous studies show, racial minorities are arrested and convicted in disproportionate
numbers relative to similarly situated whites due to biased police practices, including racial profiling.3
Thus, in many cases, criminal history has an unjustified disparate impact on racial minorities. The Commission can
address these problems by, among other things, de-emphasizing criminal history and reducing severity overall.