Bushway, presented at Symposium on the Past and Future of Empirical Sentencing

Brian Forst and Shawn Bushway have done an excellent job of bringing together perspectives from various disciplines on discretion in criminal sentencing. That itself is a great service, and there is much that I agree with. What I will attempt to do in my comments is to continue building a more complete picture of the role discretion plays in the criminal justice system from my own slightly different disciplinary perspective of law and economics. First, I will fill out some of the picture of theoretical economic work provided by the authors. The most important theoretical contributions by economists in the area of crime have been on the costs and benefits of incarceration. However, to my knowledge none of that work has incorporated judicial discretion, prosecutorial discretion, or sentencing guidelines even though they are of obvious relevance to deterrence and incapacitation. I argue that we have learned some important lessons on sentencing from theoretical work, but that more work can be done because prior forays do not adequately reflect the institutional picture. Second, I will discuss briefly the challenge of reducing and measuring “unwarranted disparity ” in sentencing. Reducing disparity was an important goal of the state and federal Guidelines, and there are substantial challenges to actually identifying the magnitude of unwarranted disparity and the success of the Guidelines in mitigating it