Article

Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform

Max M. Schanzenbach

Professor of Law, Northwestern University School of Law

Emerson H. Tiller

Stanford Clinton Senior Research Professor of Law, Northwestern University School of Law

The authors would like to thank Jason Friedman, Ben Schaye, and Grace Tabib for excellent research assistance. The authors also thank participants in workshops at Harvard Law School, Yale Law School, and the University of Minnesota School of Law for helpful comments.

Amid widespread belief that unwarranted sentencing disparity existed in federal criminal sentencing, Congress passed the Sentencing Reform Act of 1984, which established the Sentencing Commission and authorized the creation of the United States Sentencing Guidelines. The idea of creating guidelines to limit judicial discretion in sentencing was politically popular at the time, and was prompted by the belief among policymakers that significant disparities existed in sentences. The reaction of the federal judiciary was quite the opposite, with many federal judges objecting to the limitation of their historic sentencing discretion. Over one hundred district courts struck down the Sentencing Reform Act on a variety of constitutional grounds. The Supreme Court, however, upheld the Act in 1989.

The calm lasted barely a decade. By 2000, the Court had begun to whittle away at the constitutionality of the Guidelines, beginning with the seminal case of Apprendi v New Jersey, and more recently with United States v Booker, which made the Guidelines advisory rather than mandatory (thereby preserving their constitutionality). While the effect of this status change appears to be fairly small at present, new constitutional challenges continue to mount against Guidelines sentencing as the Supreme Court’s sentencing jurisprudence remains fluid. In addition, the federal judiciary and, to a similar degree, the legal academy continue to show hostility to the Sentencing Guidelines.

This study combines positive political theory with a unique data set on judges to appraise the effectiveness of the Sentencing Guidelines system. To our knowledge, ours is the first large-scale study on federal sentencing to match identified judges with offenders. In addition, we propose two reforms that could better accomplish the goals of the Guidelines while maintaining much of their present structure: (1) open data and (2) ideologically mixed circuit court panels.

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