The Commission Defends an Ailing Hypothesis: Does Judicial Discretion Increase Demographic Disparity?

The U.S. Sentencing Commission has argued that increased judicial discretion, resulting from the Supreme Court's decision in U.S. v Booker, has led to increased sentencing disparity, particularly against Black males. This paper shows that the Commission's own findings are not consistent with a pattern of increased disparity arising from increased discretion. Moreover, the Commission's statistical models do not measure the most important sources of demographic disparity: 1) pre-sentencing charging and plea bargaining decisions, and 2) unfair rules having severe adverse impacts. Nor do the models measure the effects of the most significant change resulting from Booker -- an increase in the rate of sentences imposed below the recommended guideline range. Policymakers require a broader range of methods and data, as provided by a new generation of econometric researchers, before reaching conclusions about proposals for legislative change.