Did Booker Increase Sentencing Disparity? Why the Evidence Is Unpersuasive

The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and its successors, it would clearly raise very serious policy concerns. The Commission evidently believes that Booker has in fact created a problem, because it concludes by pro- posing changes that would essentially undo Booker and restore presumptive guidelines

Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations

On the Role of Cost-Benefit Analysis in Criminal Justice Policy: A Response to The Imprisoner\u27s Dilemma

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams\u27 article, The Impriasoner\u27s Dilemma: A Cost-Benefit Approach to Incarceration,\u27 makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams\u27 piece and discuss the possible case that could be made for incorporating formal cost-benefit analysis ( CBA ) as a routine part of criminal justice policymaking, as well as some potential objections. Second, I offer more specific critical comments focused on Abrams\u27 analysis of the costs of incarceration, which I find to be less fully developed than his discussion of its benefits. Finally, I close with some brief thoughts on an issue Abrams makes a point of leaving open: the role that retributive justice concerns should play in an analysis of incarceration\u27s costs and benefits

Sentence Reduction as a Remedy for Prosecutorial Misconduct

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned and undeterred. This Article proposes adding sentence reduction to current remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. The Article demonstrates that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy

Rethinking \u27Effective Remedies\u27: Remedial Deterrence in International Courts

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an effective remedy. International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these remedial deterrence effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia - two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court\u27s particular objectives and constraints

Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations

Did Booker Increase Sentencing Disparity? Why the Evidence Is Unpersuasive

The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and its successors, it would clearly raise very serious policy concerns. The Commission evidently believes that Booker has in fact created a problem, because it concludes by pro- posing changes that would essentially undo Booker and restore presumptive guidelines

Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges\u27 informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new empirical evidence, based on a randomized experiment using fictional cases, suggesting that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments but instead to increase the weight given to recidivism risk versus other sentencing considerations

On the Role of Cost-Benefit Analysis in Criminal Justice Policy: A Response to The Imprisoner\u27s Dilemma

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams\u27 article, The Impriasoner\u27s Dilemma: A Cost-Benefit Approach to Incarceration,\u27 makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams\u27 piece and discuss the possible case that could be made for incorporating formal cost-benefit analysis ( CBA ) as a routine part of criminal justice policymaking, as well as some potential objections. Second, I offer more specific critical comments focused on Abrams\u27 analysis of the costs of incarceration, which I find to be less fully developed than his discussion of its benefits. Finally, I close with some brief thoughts on an issue Abrams makes a point of leaving open: the role that retributive justice concerns should play in an analysis of incarceration\u27s costs and benefits