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Sentencing Reforms and the War on Drugs: An Analysis of Sentence

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Journal of ContemporaryCriminal Justice

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Sentencing Reforms andthe War on DrugsAn Analysis of Sentence Outcomesfor Narcotics Offenders Adjudicatedin U.S. District Courts on theSouthwest BorderRichard D. HartleyDepartment of Criminal Justice, College of Public Policy,University of Texas at San Antonio

Sentencing reforms and the war on drugs have greatly changed the landscape of federalsentencing and the composition of the federal prison population. As of 2006, 56%of federal prison inmates were incarcerated for narcotics offenses. The SentencingReform Act of 1984, the United States Sentencing Commission Guidelines, andmandatory minimum statutes were all enacted in an attempt to make sentences moreproportional, more uniform, and less disparate. More than 35 years have passed sincereform began, and still there are questions about whether unwarranted disparities havebeen eliminated from the system and whether punishments are more proportional anduniform. Another question that has recently surfaced is whether one unitary federal lawcan produce uniform sentencing practices because of variations that exist at the districtlevel. This research analyzes the decision-making practices of judges for narcotic vio-lations in four districts in the southwestern United States. The purpose of this study isto illustrate that even in districts that have similar types of cases and political agendasregarding narcotics offending, interdistrict variation in the factors that affect sentenc-ing outcomes still exist.

Keywords: federal sentencing; narcotics; sentencing guidelines; departures; inter-district disparity

Introduction

In 1972, Marvin Frankel, a U.S. district judge for the southern district of NewYork, called for reform of the sentencing process, decrying the fact that sentencingwas lawless and that judges could impose any sentence they wanted (Frankel, 1972a,1972b). Frankel noted that as a result of this “lawlessness” similar offenders often



438 Journal of Contemporary Criminal Justice

received widely divergent sentences for similar or identical crimes. Frankel’s influ-ential statements raised concerns about unwarranted disparity in sentencing (i.e., dis-parity based on the offender’s race, class, and gender) and about fairness in thejustice system. Indeed, it was because of Frankel and critics like him that sentencingin the United States underwent drastic transformation. Congress responded with theenactment of the Sentencing Reform Act (SRA) of 1984. The SRA created theUnited States Sentencing Commission (USSC), which was authorized to developand implement presumptive sentencing guidelines with the intent of designing asystem to achieve “honesty,” “uniformity,” and “proportionality” in sentencing(USSC, 1999). The act also abolished parole, mandated that departures from theguidelines would only be accepted with written justification, and required appellatereview of sentences to ensure that the guidelines were being properly applied.

Walker (1993) contends that these sentencing reforms produced the most funda-mental changes in any area of the criminal justice system. Prior to the reforms,judges were allowed to use their discretion to tailor sentences to fit individuals andtheir crimes. Therefore, judges could consider all circumstances about offenders thatthey deemed relevant. After the reforms, judicial discretion was restrained; judgescould only determine the sentence using legally relevant factors. Reformers believedthat judicial discretion caused disparities in sentencing (Freed, 1992). In addition,they thought the reforms “would result in more punitive, more effective, and fairersentence outcomes” (Spohn, 2002, p. 263).

What has resulted is a federal sentencing system that is very complex. Sentencingguidelines and mandatory minimums attached to certain offenses are two of the fac-tors that now greatly affect punishment decisions. Although it is clear that thesechanges have led to more punitive sentences, whether fairer and more effective sen-tences are being handed out is still the subject of debate. Most of the criticisms sur-rounding issues of fairness and effectiveness in the current system come fromsentences handed down for narcotics violations. The most obvious result of sentenc-ing reforms is that drug offenders now comprise more than half of the federal prisonpopulation in the United States. In the same year that the data for this study were col-lected, 92% of narcotics offenders received prison terms (United States Departmentof Justice [USDOJ], 2003). Also, since 1995, narcotics offenders have made upalmost half of the increase in federal prison populations, and currently, 71% of fed-eral inmates are racial or ethnic minorities (USDOJ, 2006).

As part of the reform movement, Congress attached mandatory minimum sen-tences to many narcotics offenses. During the reform era, the United States was alsoengaged in a war on drugs. The focus of the United States’s war on drugs has beento deter narcotics use and decrease the flow of narcotics entering the country. One of

Please address correspondence to Richard D. Hartley, Department of Criminal Justice, College of PublicPolicy, University of Texas at San Antonio, 501 W. Durango Boulevard, San Antonio, TX 78207; e-mail:[email protected].



several methods adopted to accomplish these goals was to enhance the severity ofpenalties for certain narcotics violations. Penalties for narcotics offenders have, inthe last two decades, become especially harsh; under the federal sentencing guide-lines system, penalties are attached to the amount or weight of drugs involved. In2003, average sentence lengths for narcotics offenders were near those received byviolent and weapons offenders, at 81.4 months (USDOJ, 2003).

The intent of guideline-based sentencing and mandatory minimum sentences wasto ameliorate unwarranted disparity regarding legally irrelevant factors such as gender,race, and ethnicity. The current demographic composition of the U.S. federal prisonpopulation, however, has prompted scholars and practitioners alike to doubt whetherthe current reforms are advancing the sentencing goals set forth in the SRA of 1984.The changes that the system has experienced have prompted at least one scholar tocharacterize federal sentencing as a “mess” (Hofer, 2007, p. 435). The system becomeseven messier in the case of narcotics offenses. Weights of narcotics, differentialmandatory minimum triggers, safety valve departures, downward departures, substan-tial assistance departures, and interjurisdictional differences in the application of theabove factors have further muddied the process and made it difficult to determinewhether sentences for narcotics violations are uniform and without disparity. SinceFrankel’s consequential call for reform, the system has been engaged in a 30-yearexperiment with sentencing. With inconsistency in the evaluation of reforms and con-tinuing concerns about unfairness in the system, questions have also surfaced aboutwhether a blanket reform movement can produce national sentencing practices that aremore uniform and less disparate (see for instance, Alshuler, 2005; Bushway & Piehl,2007; Cole, 1997; Doob, 1995) or whether the reality is that the federal districts are sovaried in their politics and practices that the system is uniform only in theory.

Review of the Literature

Sentencing Guidelines and Mandatory Minimums

The first sentencing reforms focused on indeterminate sentencing in which a judgeimposes a minimum and a maximum sentence, and the parole board decides on aninmate’s release date. Between 1935 and 1975, every American state, the District ofColumbia, and the federal system had this type of sentencing structure (Tonry, 1996;Tonry & Hatlestad, 1997). The result of indeterminate sentencing was a sentencingprocess in which judicial discretion was unrestrained, and as a result, it was impossi-ble to predict with any certainty who would go to prison or for how long. Both liber-als and conservatives agreed, albeit for different reasons, that reform was needed.Liberals contended that indeterminate sentencing was arbitrary and capricious andviolated a defendant’s due process rights and equal protection under the law. Theyargued that judges, parole boards, and corrections officials were untrustworthy and

Hartley / Sentencing Reforms and the War on Drugs 439



that reining in judicial discretion was the only way to halt these disparities.Conservatives, on the other hand, believed that sentences were too lenient and werenot tied to the seriousness of the crime or the culpability of the offender. They, there-fore, wanted reforms that would establish and enforce more punitive sentences.

The SRA of 1984 and the USSC created the Federal Sentencing Guidelines, whichuse crime severity and prior record as the axes of a grid that judges consult to deter-mine appropriate sentences. Mandatory minimums were also implemented at the fed-eral level for certain offenses. If an offender meets the criteria for a mandatoryminimum under these offenses, the judge must impose the minimum. Members ofCongress attached mandatory minimums to drug offenses in 1986 and 1988 out of fearthat narcotics were commonly available to teenagers and young adults (Tonry, 1994)and because they believed that such a policy would reduce crime and result in thedetention of many drug kingpins. The opposite, however, has occurred; mandatoryminimums have been harshly criticized for disproportionately affecting low-leveloffenders. Furthermore, mandatory minimums automatically set an offender’s sen-tence length, even if the guideline range is lower. Because of these criticisms, Congressresponded by adding a safety valve provision, which exempts low-level and first-timedrug offenders from the minimums. This safety valve provision was put in place togive first-time, low-level, and nonviolent drug offenders a reduced sentence (USSC,1999). If a defendant meets the five criteria for the safety valve, the judge must disre-gard the mandatory minimum. With regard to the criteria, the defendant must havelittle or no criminal history; should not have used a weapon or threatened violence;should not have been a leader, manager, or supervisor in the offense; the offense shouldnot have resulted in serious injury or death; and the defendant should have given truth-ful information to officials (USSC, 1999). If these criteria are met, the judge can givea two-level downward adjustment or depart from the guideline sentence.

Results of Reforms

The federal sentencing guidelines have been in place since 1987. Althoughnumerous concerns have been raised about the guideline’s effectiveness and fairness,it is clear that they are “alive and well” (Frase, 1997, p. 12). However, the guidelineswere not well received by criminal justice officials. Judges lost discretion in sen-tencing, defense attorneys worried about obtaining favorable sentences for theirclientele, and prosecutors believed plea bargaining would be affected (Stith &Cabranes, 1998). Soon after the federal guidelines went into effect they encounteredalmost 300 lawsuits questioning their constitutionality (Nagel, 1997). Nonetheless,in Mistretta v. United States (1989), the Supreme Court upheld the SRA of 1984 andthe constitutionality of the sentencing commission and the guidelines (Tonry, 1993).

Critics today charge that the current sentencing process is overly rigid andmechanical; contentions are that the “traditional judicial role of deliberation andmoral judgment” has been replaced with “complex quantitative calculations that




convey the impression of scientific precision and objectivity” (Stith & Cabranes,1998, p. 82). Ruback and Wroblewski (2001) concur, noting that the guidelines haveconstrained the judge’s discretion to consider the myriad factors that might be rele-vant in a particular case or for a particular defendant. Both Stith and Cabranes (1998)and Ruback and Wroblewski (2001) charge that the guidelines have reduced sen-tencing to a series of complicated calculations. Hofer, Blackwell, and Ruback (1999)further argue that the guidelines’ lack of discretion and rigid structure may actuallyreintroduce the types of disparity the guidelines were designed to avoid. As theynote, when judges are left without adequate means to impose what they believe areappropriate sentences, they may seek ways around the guidelines.

Under the federal sentencing guidelines, judges are precluded from consideringextralegal factors in determining the appropriate sentence. Research, however, showsthat determinate sentencing structures may lead to harsher treatment of minorities andthe poor because judges find ways to either manipulate the reforms or circumvent themaltogether (Nagel & Schulhofer, 1992). Additionally, there are interdistrict gaps indepartures (Stith & Cabranes, 1998) in which Whites and women more often receivenonprison sentences as well as downward departures (Hartley, Maddan, & Spohn, 2007;Kempf-Leonard & Sample, 2001), and Blacks more often have higher offense severityand criminal history scores because of societal disadvantage (Tonry, 1996). Researchgauging guideline effectiveness at the federal level is sparse (United States GeneralAccounting Office [USGAO], 1992; USSC, 1991). The results of these studies, how-ever, have shown that the likelihood of incarceration has increased for federal offendersand that average sentence lengths, overall, are more severe. In general, in the post-guidelines era, offenders are more likely to be incarcerated and serve longer sentences.

Other reforms implemented at the federal level, namely mandatory minimums,hinder the ability of researchers to imply a causal effect. Indeed, mandatory mini-mum sentences are also alive and well; there are more than 60 mandatory minimumstatutes covering more than 100 federal offenses (Tonry, 1996). Although opponents’primary objection to mandatory minimums is their excessive severity (Zimring,Hawkins, & Kamin, 2001), especially in the case of narcotics offenses, minimumsare also criticized as being too inflexible and that they lead to noncompliance byprosecutors (Kautt & Delone, 2006; Ulmer, Kurlychek, & Kramer, 2007; USSC,1991). Research has shown that mandatory minimums have not worked as expectedbecause they have merely shifted discretion from judges to prosecutors (Caulkins,1997). Tonry (2006) believes that mandatory minimums are a clear example of“criminology and public policy marching in different directions” (p. 45).

Mandatory minimum sentences were implemented to deter certain offenders, buttheir circumvention has hindered their ability to do this. The USSC, in 1991 and 2004,conducted studies that revealed that prosecutors often did not file charges carryingmandatory minimum penalties when the evidence indicated that such charges were war-ranted. An exception to this circumvention, however, may be in the case of narcoticsoffenders. For narcotics, the type of drug and the amount of drugs results in a mandated




sentence (Beckett & Sasson, 2000). In other words, when sentencing a defendant con-victed of an offense carrying a mandatory minimum, the judge is not supposed to con-sider anything other than the type and amount of drugs involved. A study by Meierhofer(1992) revealed that many drug offenders who got mandatory minimums were low-level offenders who presented no threat to society. Vincent and Hofer (1994) reachedsimilar conclusions in their research. Caulkins, Rydell, Schwabe, and Chiesa (1998)also raise questions about the monetary costs of mandatory minimums based on theresults of research about their effectiveness. Tonry (1996), who commented on theeffectiveness of mandatory minimums, contends that “they do little that is good andmuch that is bad, both to the integrity of the legal system and to offenders” (p. 191).

Reforms and Narcotics Offenses

A retrospective view of the goals of the federal sentencing guidelines in relation tonarcotics offenses reveals that not all the goals are being met. It appears that the get-tough-on-crime policies that accompanied the sentencing reforms have led to morepunitive treatment of offenders convicted of narcotics violations. Therefore, the goalsof retribution, deterrence, and incapacitation have been at least partly realized. Tonry(1996) contends that mandatory minimums, however, have had no deterrent effects.Vincent and Hofer (1994) further argue that it is debatable as to whether or not drugtraffickers can be deterred in the first place. Rehabilitation and restoration, on the otherhand, have been neglected; there are no provisions anywhere in the guidelines for reha-bilitation. Regarding incapacitation, the key is to incarcerate those predicted to reof-fend; neither guidelines nor mandatory minimums can do this. Mandatory minimumsdo not base punishment on the number of priors (which is the best predictor of futureoffending) but instead on drug amounts (Vincent & Hofer, 1994). This also rules outthe just deserts sentencing philosophy because, often, those less culpable are chargedwith having the same quantity of drugs as their high-level coconspirators (Maxfield &Kramer, 1998). In fact, “Street-level offenders are more likely to receive the minimumthan are those who are either more or less culpable” (Vincent & Hofer, 1994, p. 20).

Judicial Discretion Under the Guidelines

Under the guidelines, the two main predictors of sentences continue to be the seri-ousness of the offense and the offender’s criminal history (Chiricos & Bales, 1991;Daly, 1987; Daly & Tonry, 1997; Gruhl, Spohn, & Welch, 1981; Spohn & Beichner,2000; Spohn & Holleran, 2000; Steffensmeier, Ulmer, & Kramer, 1998; Walker &Barrow, 1985). Some research, however, shows that judicial decisions are influencedby other factors as well. Some report judges being influenced by public policy issues(Bright & Keenan, 1995), whereas others argue that sentences are not solely the prod-uct of judicial decision making but are rather the result of attributions of threat anddangerousness held by the members of a courtroom’s workgroup (Eisenstein & Jacob,




1977; Feeley, 1983; Nardulli, 1978). Still others have demonstrated that judicial deci-sions are affected by the offender’s age (Spohn & Holleran, 2000; Steffensmeier et al.,1998; Steffensmeier & Motivans, 2000), gender (Daly, 1987; Spohn & Beichner, 2000;Steffensmeier, Kramer, & Streifel, 1993), race or ethnicity (Spohn & Holleran, 2001;Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998), and social status (Chiricos& Bales, 1991).

Departures From Guidelines

Kramer and Ulmer (1996, 2002) believe departure decisions are another “potentialsource of unwarranted disparity” (Kramer & Ulmer, 1996, p. 81) under sentencingguidelines. Two types of widely used departures in the federal system are the downwarddeparture and the departure for substantial assistance. A downward departure can begiven by a judge under 18 U.S.C. §3553(b) if there exists a “mitigating circumstance ofa kind, or to a degree, not adequately taken into consideration by the SentencingCommission” and “the decision as to whether and to what extent a departure is war-ranted rests with the sentencing court on a case-specific basis” (USSC, 1999, p. 357).These departures are to be given where a case is outside “the heartland” of guidelinecases (Koons v. United States, 1996). A departure for substantial assistance, which isalso referred to as a §5K1.1 departure, reflects the statutory authority set forth in Title18 U.S.C. §3553(e) and requires a motion by a U.S. attorney. Defendants who supply“substantial assistance”—or information that leads to the prosecution and conviction ofanother offender—may be sentenced outside the presumptive guideline range. This typeof departure is particularly common in narcotics cases where a mandatory minimumapplies. A substantial assistance motion by the prosecutor and granted by the court auto-matically removes the mandatory minimum sentence that would ordinarily be bindingat sentencing. According to the USGAO (2003), 26% of drug sentences fell below themandatory minimum because of a departure for substantial assistance.

Departure Rates

According to the USSC (2003), a decreasing number of federal cases are sen-tenced within the guideline range (80.6% in 1991 vs. 63.9% in 2001). The commis-sion contends that this can be attributed to increases in the nonsubstantial assistancedownward departure rate. The downward departure rate between 1991 and 2001increased from 5.8% to 18.1% (USSC, 2003). The average downward departure ratefor all districts was about 18% in 2001. However, across districts there was consid-erable variation. For instance in 2001, downward departure rates ranged from a lowof 1.4% in the eastern district of Kentucky to a high of 62.6% in the district ofArizona (USSC, 2003). The southwest border districts in particular have seen sig-nificant increases in downward departure rates (10.2% in 1991 to 38.2% in 2001).These border districts in the southwest account for a large share of the departures




nationally. In 2001, for instance, the departure rate was 18.1% for all federal districtstogether, but 38.2% for five districts on the southwest border (USSC, 2003). Thesesouthwest border districts report that the departure increases are in response to over-whelming increases in immigration and drug trafficking offenses.

Downward departure rates also vary by offense type. For example, the downwarddeparture rate for immigration offenses between 1991 and 2001 increased at a muchhigher rate (by more than 1,000%) than for any of the other offense types. And down-ward departure rates for drug trafficking offenses almost tripled during that timeperiod (USSC, 2003). Mitigating circumstances provided the reason for most of thedownward departures in 2001 (24%), followed by concessions pursuant to a pleaagreement (18%). Of the downward departures for mitigating circumstances, drugtrafficking accounted for 43% of those given a departure for this reason. Noncitizenscomprised more than half (50.9%) of the offenders given a downward departure asa result of mitigating circumstances (USSC, 2003). Downward departures pursuantto a plea agreement comprised roughly 18% of all downward departure cases in2001. Two southwest border districts—Arizona (54.3%) and New Mexico(21.9%)—however, accounted for more than 75% of plea agreement departures. Inthese two districts, immigration offenses made up about 60% of departures linked toplea agreements, and drug trafficking offenses made up about 34% of such depar-tures (USSC, 2003). Furthermore, 72% of offenders who received a departure sub-sequent to a plea agreement in these two districts were noncitizens.

Substantial assistance departures also vary by district and offense type. In 2002,for instance, the departure rate for substantial assistance for all federal districts was17.4%. However, it varied from a low of 5.2% in the district of Rhode Island to ahigh of 46.3% in the middle district of Alabama (USSC, 2004). When disaggregatedby offense type, roughly 27% of drug offenders receive departures for substantialassistance. But, even within circuits, there are considerable variations regarding sub-stantial assistance departures for narcotics offenses. For instance, within the fifth cir-cuit, the western district of Texas has the lowest substantial assistance departure rate(12%), the southern district of Texas gives substantial assistance departures in morethan one quarter of cases (26%), and in the middle district of Louisiana, 58% of drugoffenders are granted departures for substantial assistance (USGAO, 2003). In theninth circuit, both the district of Arizona and the southern district of California givesubstantial assistance departures in 13% of drug cases. However, in this same circuit,the rates are substantially higher in Montana (40%) and Idaho (62%). Similarly, inthe 10th circuit, substantial assistance departures are given in only 5% of cases in theeastern district of Oklahoma but are given in 13% of cases in New Mexico and inmore than half the cases (52%) in Colorado (USGAO, 2003). From these statistics,it is obvious that rates for both types of departures vary considerably across federaldistricts and even across districts within the same circuit.




Empirical Research on Departures

Kramer and Ulmer (1996) studied both dispositional and durational departuresunder guidelines in the state of Pennsylvania and found that offense severity and priorrecord were the most influential predictors but that race effects were present in bothdispositional decisions (the odds of African Americans receiving a departure were37% less) and durational decisions (African Americans received smaller sentence dis-counts for downward departures than did Caucasians). Similar results were found byEngen, Gainey, Crutchfield, and Weiss (2003) in Washington State and in Albonetti’s(1997) study of the federal sentencing guidelines system. All these studies showedthat race and ethnicity were related to the likelihood of receiving a dispositionaldeparture, which produced harsher sentences for minorities. Nagel and Schulhofer(1992) argue that these discretionary charging and plea bargaining decisions couldundermine the goals of the guidelines. Their study found instances where chargeswere manipulated to circumvent the guidelines through substantial assistance depar-tures. Ulmer and Miller (2002) found similar results in four U.S. District Courts; theodds of a substantial assistance departure varied by district, and receipt of this type ofdeparture had significant but inconsistent effects on sentence severity. Their study andthose of others (Langan, 1996; Maxfield & Kramer, 1998; USSC, 1995) found thatthe odds of receiving substantial assistance departures were influenced by the defen-dant’s gender, race, ethnicity, and type of attorney in some of the districts. Furthermore,of those receiving substantial assistance departures, sentence discounts for Blacks andHispanics were less than those for White defendants (Maxfield & Kramer, 1998; seealso Steffensmeier & Demuth, 2000). Hartley et al. (2007) similarly showed that race,ethnicity, and gender had variable effects on substantial assistance departures depend-ing on the type of narcotics case (mandatory minimum vs. guideline). Mustard (2001)looked at departures in general and came to a similar conclusion. Blacks and maleshad lower odds than Whites and females of getting a downward departure, and thiswas the primary source for sentencing disparity. To elaborate, based on Mustard’s cal-culations, departures “accounted for 56% of the racial and 67% of the gender differ-ences in sentence length” (Mustard, 2001, p. 19).

The results of these studies have led most researchers to recognize that althoughfederal sentencing guidelines have constrained judicial discretion, exceptions to theguidelines (departures) may hinder the uniformity and disparity amelioration thatguidelines were supposed to achieve (Behre & Ifrah, 2003). Others contend thatintrajurisdictional disparities regarding departures also hinder the guideline’sattempts at uniformity (Gelacek, Nagel, & Johnson, 1996; Hofer et al., 1999).

Current Study

Recent research has begun to use multilevel modeling techniques to determinewhether sentence outcomes vary across jurisdictions and to identify interjurisdictional




differences in the factors that affect sentencing decisions (Britt, 2000; Hartley et al.,2007; Kautt, 2002; Ulmer & Johnson, 2004). Those in charge of policy decisions arenow, more than ever, looking to scholars for empirical tests of the system’s fairness andeffectiveness (Hofer, 2007). The myriad factors that characterize the 94 districts in thefederal criminal justice system make it difficult to predict the factors that may affectdecision making with any consistency. Whether the system is fair and uniform is stillundecided. There is no debate, however, about the fact that sentences for narcotics vio-lations have become harsher as a result of sentencing reforms. The war on drugs andsentencing reforms have resulted in narcotics offenders comprising more than half ofthe federal prison population in the United States. Nowhere is this attention to nar-cotics more pronounced, and the war on drugs more intense, than in the border districtsof the southwestern United States. Just four of the 94 federal districts—the southerndistrict of Texas, the southern district of California, and the districts of New Mexicoand Arizona—accounted for almost 20% of the narcotics cases adjudicated in federalcourts in 2003. The purpose of this study, therefore, is to look at sentencing variationin narcotics cases across these four federal districts. Are the sentences, and the factorsthat affect them, uniform in these four relatively homogenous districts?

Data and Methods

The data for this study were provided by the USSC and include defendants sen-tenced in 2003 for narcotics trafficking offenses (Interuniversity Consortium forSocial and Political Research, 9317). Three judicial decisions will be analyzed: thelength of the prison sentence imposed on defendants sentenced to prison, the magni-tude of the sentence discount from the guideline sentence that an offender receivedfor a regular downward departure, and the magnitude of the sentence discount that anoffender received for a substantial assistance departure. These are three importantdecision points where judicial discretion may surface. Although judges have limiteddiscretion to determine the actual sentence because of guidelines restrictions, theystill have discretion to determine the appropriate sentence from within a narrow rangeof months. However, when downward departures are granted a judge can impose asentence outside the guidelines range. Finally, substantial assistance departures areparticularly important in narcotics cases. This is especially true in cases where amandatory minimum applies; if the offender receives a departure for providing sub-stantial assistance, for example, the judge does not have to apply the mandatory min-imum sentence (USSC, 1999). These three areas of judicial decision making,therefore, could provide an avenue under which unwarranted disparity may emerge.

The sentence length dependent variable is continuous and is measured as thelength of sentence a defendant receives in months.1 To analyze the magnitude of thediscount for departure recipients, new variables had to be created. First, a variable thatmeasured an offender’s presumptive sentence under the guidelines was created. This




variable was computed in the following way: First, if a case had no drug minimum orif there was a drug minimum but the safety valve provisions were applied, then thepresumptive sentence equaled the guideline minimum sentence. Second, if the casehad a drug minimum and no safety valve attached, and the drug minimum was greaterthan the guideline minimum, then the presumptive sentence was the mandatory min-imum sentence. Third, if the case had a drug minimum and there was no safety valveattached, and the drug minimum was less than the guideline minimum, then the pre-sumptive sentence equaled the guideline minimum. This new variable provides ameasure of the offender’s presumptive sentence under the guidelines; it is the mini-mum sentence that the judge could impose without departing downward. Using thisnew variable and the offender’s actual sentence, a second variable that measured themagnitude of sentence discount was created. This magnitude of discount variable wascomputed by first subtracting an offender’s actual sentence from the presumptive sen-tence, dividing this figure by the presumptive sentence, and then multiplying it by100. The variable for sentence discount is therefore operationalized as the ratio of thepresumptive sentence to the actual sentence and is measured at the interval level. Thisnew variable, which is essentially a measure of the percentage by which the sentencewas discounted, is continuous and bounded at zero. All three decision points will beanalyzed using OLS (ordinary least squares) regression.

Table 1 presents the frequencies or mean values for the case and offender char-acteristics that are included in the analyses; separate figures are provided for eachdistrict. The analyses include a number of case characteristics that, according to theUSSC, are legally relevant predictors of sentence severity. These include whether adrug minimum was applicable, the number of conviction counts, whether or not thesafety valve provision was applied, the type of drug, and the final offense level andcriminal history category. Factors that are not legally relevant to sentencing underthe federal sentencing guidelines are also included as controls. They include theoffender’s race/ethnicity, gender (female = 1; male = 0), age, education, pretrialdetention status (released = 1; detained = 0), citizenship status (noncitizen = 1; citizen =0), whether any departures were granted (downward departure = 1; no departure =0; substantial assistance departure = 1; no departure = 0). The offender’s race/ethnicity is measured using three dummy variables (White, Black, Hispanic); Whiteoffenders are the reference category. Age is a continuous variable. Education is mea-sured by three dummy variables: no high school degree, high school degree, andsome college; no high school degree is the reference category.

Table 1 illustrates that most of those convicted of narcotics offenses in these fourfederal district courts in 2003 received prison sentences; in all four districts, morethan 90% of offenders received prison terms. There was more variation regardingsentence length. The southern district of Texas handed down the harshest sentences(an average of 52.7 months); sentences in this district were twice as long as thoseimposed in the district of Arizona and the southern district of California, and were justmore than 10 months longer than the sentences imposed in the district of New




Mexico. This is somewhat surprising considering that the mean offense levels, meannumber of counts, and mean criminal history categories did not vary much across thefour districts. Departure rates also varied considerably among the districts. Onlyabout 10% of cases in Texas and New Mexico resulted in downward departures, ver-sus 35% and 52%, respectively, in Arizona and in the southern district of California.This may provide an explanation for the low mean sentence lengths in California andArizona compared with those in New Mexico and Texas. Substantial assistance


Table 1Variables Included in the Multivariate Analysis: Frequencies and Means

Variable Texas New Mexico Arizona California

Sentenced to prison (yes) 1,685 (95.1%) 580 (91.6%) 1,329 (93.1%) 1,059 (97.2%)Mean sentence length (months) 52.7 42.5 24.7 25.7Mean criminal history category 1.7 1.9 1.4 1.8Mean final offense level 21.6 18.8 15.2 18.1Mean number of counts 1.1 1.38 1.15 1.06Safety valve (yes) 827 (47%) 262 (41.4%) 664 (45.5%) 520 (47.7%)Type of drug

Marijuana (reference) 928 (55.6%) 308 (49.5%) 1,071 (77.5%) 648 (62.8%)Cocaine 489 (30%) 131 (21%) 166 (12.2%) 182 (17.7%)Crack 116 (7.1%) 60 (9.7%) 16 (1.3%) 22 (2.2%)Heroin 52 (3.1) 30 (4.8%) 21 (1.6%) 16 (1.5%)Methamphetamine 35 (2%) 88 (14.2%) 85 (6.3%) 123 (12.2%)

Downward departure (yes) 207 (11.7%) 66 (10.4%) 512 (35.7%) 558 (51.2%)Substantial assistancedeparture (yes) 338 (19.2%) 59 (9.3%) 152 (10.6%) 76 (7%)

Offender race/ethnicityWhite (reference) 222 (12.6%) 112 (17.7%) 146 (10.2%) 308 (28.3%)Black 119 (6.7%) 53 (8.4%) 31 (2.2%) 33 (3%)Hispanic 1,422 (80.7%) 456 (72%) 1,176 (82.1%) 748 (68.7%)

Offender genderFemale 214 (12.2%) 91 (14.4%) 155 (10.8%) 140 (12.9%)Male (reference) 1,546 (87.8%) 542 (85.6%) 1,277 (89.1%) 948 (87.1%)

Offender age (mean) 32 32 31 33Offender education

No high school degree(reference) 1,112 (63.1%) 371 (58.6%) 1,007 (70.3%) 644 (58.9%)

High school degree 450 (25.5%) 172 (27.2%) 248 (17.3%) 193 (17.7%)Some college 201 (11.4%) 77 (12.2%0 144 (10%) 201 (18.4%)

Offender’s pretrial statusDetained 1,365 (77.4%) 495 (78.2%) 1,257 (87.7%) 967 (88.8%)Released (reference) 398 (22.6%) 138 (21.8%) 176 (12.3%) 122 (11.2%)

Offender’s citizenship statusNoncitizen 646 (37.8%) 242 (38.4%) 875 (61.8%) 523 (49.6%)Citizen (reference) 1,065 (62.2%) 388 (61.6%) 542 (38.2%) 532 (50.4%)

N 1,763 633 1,432 1,089



departures, however, were more prevalent in Texas (19.2%) than in New Mexico(9.3%), Arizona (10.6%), or California (7%). The typical narcotics offender in thesedistricts was a Hispanic male in his early thirties without a high school degree, whowas detained pretrial. Citizenship status varied by district. Specifically, the southerndistrict of California had equal numbers of citizens and noncitizens; a majority ofoffenders were citizens in Texas south and New Mexico, and a majority of offenderswere noncitizens in Arizona.

Results

The results of the OLS regression analyses2 of sentence length, which are pre-sented in Table 2, indicate that there are some differences in the variables that signif-icantly influence the length of the sentence across districts. The legally relevantvariables (i.e., criminal history category, final offense level, and number of convictioncounts) are significant predictors in every district. As crime seriousness and criminalhistory increase, the length of the sentence imposed by the judge also increases. Thevariable that indicates whether the offender faced a mandatory minimum sentence issignificant only in the southern districts of Texas and California. However, the direc-tion of this effect is different in these two jurisdictions. Whereas in Texas offendersfacing mandatory minimum sentences received shorter sentences (−14.9 months) thanoffenders who were not facing mandatory minimums, in California, offenders whosecrimes triggered mandatory minimum sentences received longer sentences (+4.3months) than those whose crimes did not. These results were unexpected; the pres-ence of a mandatory minimum sentence should have had a significant and positiveeffect on sentences for narcotics offenders across districts. It was also somewhat sur-prising to find that the application of the safety valve variable had a significant effectonly in Arizona; in this district, offenders to whom the safely valve was applicablereceived (on average) half a year less in prison. The results from these two variablesprovide evidence that federal sentencing guidelines may not work uniformly acrossall districts; the safety valve does not decrease a defendant’s sentence significantly inall districts studied here, and the mandatory drug minimum can exert negative or pos-itive effects depending on which district court a defendant is in. These findings areevidence that legally relevant factors may produce disparity across districts.

The type of drug also exerts varying effects across districts. In Arizona, forinstance, offenders convicted of crimes involving powder cocaine, crack cocaine, andheroin all received lengthier sentences than did offenders convicted of offensesinvolving marijuana. Specifically, powder cocaine offenders received sentences thatwere almost 5 months longer, heroin offenders received sentences that were 14months longer, and crack cocaine offenders received sentences that averaged 22months longer than those imposed on marijuana offenders. Drug type was not a sig-nificant predictor in New Mexico. Also, only crack cocaine offenders in the southern




districts of Texas and California received significantly longer sentences than mari-juana offenders. In Texas, crack offenders received sentences that were 10 monthslonger than those for marijuana offenders. In California, sentences for crack offend-ers were more than 27 months longer than those for marijuana offenders. Again, these


Table 2Ordinary Least Squares Regression Models of the Sentence

Length Decision of Narcotics Offenders in SouthwesternDistricts: Data Partitioned by District

Texas New Mexico Arizona California

Variable B Beta B Beta B Beta B Beta

Drug minimum –14.9* –.075 .105 .001 –.38 –.005 4.28* .061Criminal historycategory 9.42* .195 10.27* .278 7.95* .218 6.00* .258

Final offense level 7.02* .851 5.45* .667 2.59* .721 3.14* .616Number of convictioncounts 17.9* .169 6.58* .120 13.71* .219 19.6* .160

Safety valve applied –2.37 –.020 –3.04 –.027 –6.37* –.076 .766 .012Type of drug

Marijuana(reference)

Cocaine –1.14 –.009 –4.56 –.034 4.75* .043 –.99 –.011Crack 10.4* .045 –.69 –.004 22.1* .068 27.23* .117Heroin –6.23 –.018 –11.34 –.044 14.3* .049 1.78 .007Meth –7.53 –.020 3.78 .025 2.31 .016 –2.96 –.029

Downward departure –14.7* –.075 –17.8* –.099 –24.4* –.328 –4.22* –.062Substantial assistancedeparture –38.9* –.259 –44.2* –.236 –32.6* –.275 –12.9* –.100

Offender is Black 4.34 .019 4.06 .022 –11.2* –.045 15.28* .079Offender is Hispanic –.42 –.033 4.06 .032 –1.66 –.017 .928 .013Offender is female –2.22 –.012 .355 .002 –6.74* –.056 –1.92 –.019Offender’s age –.021 –.003 .126 .023 –.011 –.003 .015 .005Offender’s education

No HS (reference)HS graduate –.035 .001 6.05 .049 2.13 .022 –.45 –.005Some college –.526 –.003 .701 .004 6.26* .050 –1.39 –.016

Offender detained –3.41 –.024 –.292 –.002 –3.79 –.029 –2.52 –.022Offender is anoncitizen 1.66 .014 7.77* .070 1.94 .026 –.52 –.008

Constant –113.64 –93.76 –27.81 –60.68Adjusted R2 .767 .718 .599 .664N 1,763 633 1,432 1,089

Note: HS = high school.*p ≤ .05.



findings support the argument that similar case characteristics do not similarly influ-ence sentences from one district to another.

The variables that indicated whether an offender received either a downwarddeparture or a substantial assistance departure had significant negative effects on sen-tence length in all four districts. However, the sentence discount for these downwarddepartures varied across districts. Receiving a regular downward departure resulted inan average sentence discount that ranged from 4.22 months (California) to 14.7months (Texas), 17.8 months (New Mexico), and 24.4 months (Arizona). Similarly,offenders got substantially smaller sentence discounts for providing substantial assis-tance in California (12.9 months) than they did in Arizona (32.6 months), Texas (38.9months), or New Mexico (44.2 months). These results illustrate the importance ofdepartures in federal sentencing decisions and provide justification for one to analyzethe magnitude of sentence discounts that judges give offenders.

With regard to the influence of the extralegal factors on sentence length, theresults presented in Table 2 are inconsistent. Neither the offender’s age nor theoffender’s ethnicity significantly affected sentence length in any of the districts.However, women sentenced in the Arizona court received significantly shorter sen-tences than men (−6.74), and offenders with some college education received justmore than half a year longer in prison (6.26) than did offenders without a high schooldegree. New Mexico is the only district where noncitizens were at a disadvantage;noncitizens received sentences that were almost 8 months longer than those imposedon citizens. Finally, race significantly predicted sentence length in Arizona and inCalifornia but not in Texas or in New Mexico. Again, however, this variable did notsimilarly predict the sentencing outcome in both Arizona and California; AfricanAmericans receive shorter sentences than Caucasians in the former (−11.2) butlengthier sentences than Caucasians in the latter (15.28).

In sum, the results from Table 2 demonstrate that under the guidelines, mandatoryminimum sentences and safety valve provisions do not affect sentence outcomes ina uniform manner across districts. The overall results suggest that there are both sim-ilarities and differences in the predictors of sentence length in these four southwest-ern district courts. The results also reveal that certain extralegal factors havesignificant and differential effects under the guidelines across these four districts.Finally, departures are both significant and important predictors of sentence lengthacross all four districts.

If extralegal factors are influential in the amount of the discount given to those whoreceive a departure, unwarranted disparities could still be present under the guide-lines, and sentence discounts for departures would provide a context where disparitycould enter the system. The next step in the analysis, therefore, is to explore the fac-tors that affect the amount of the sentence discount for cases where a downwarddeparture or a substantial assistance departure is granted in each of the four districts.

The results of these analyses,3 as shown in Tables 3 and 4, reveal that extralegal fac-tors have inconsistent effects on the magnitudes of sentence discounts for both types




of departures. Regarding downward departures, Arizona is the only district whereoffenders convicted for powder cocaine charges received significantly different sen-tence discounts from marijuana offenders. Those convicted for cocaine charges inArizona received sentence discounts that averaged 8% less than the discounts given tomarijuana offenders. The southern district of Texas is the only district where femaledefendants received significantly larger sentence discounts than males (a difference ofabout 10%). Offenders who were detained prior to sentencing received significantlylarger sentence discounts than those who were not detained, in all districts exceptArizona; in California, in fact, detained offenders received sentence discounts thatwere almost 20% greater than the discounts received by those who were not in cus-tody. This finding is surprising because it is contrary to most findings from extantresearch regarding the role of detention status; in most other studies, pretrial detentionincreases the severity of an offender’s sentence. A possible explanation for the findingsreported herein may be that judges are sympathetic to offenders who they believedeserve a departure but who are already serving time in detention. Finally, citizenshipstatus is significant for three of the four districts. In Texas and New Mexico, nonciti-zens receive smaller sentence discounts, but in California, noncitizens receive largerdiscounts than citizens. Specifically, noncitizens in Texas receive sentence discountsthat are (on average) 10% less than citizens. In New Mexico, the discounts for nonci-tizens are almost 30% less than those given to citizens. Judges in California, however,give noncitizens discounts that are almost 7% greater than those given to citizens.

There were also some noteworthy findings regarding substantial assistance depar-tures (see Table 4). For instance, offender ethnicity only affected the magnitudeof sentence discounts given in Texas; Hispanics received discounts that were 8.5%smaller than those received by Caucasians. Female offenders received larger sentencediscounts than male offenders for substantial assistance departures in Texas (6%greater) and in Arizona (16% greater) but not in New Mexico. Age was a significantpredictor only in the district of New Mexico, where older offenders received smallersentence discounts than did younger offenders. Finally, as with discounts for down-ward departures, offenders who were in custody in Texas and in Arizona (but not inNew Mexico) received larger sentence discounts than offenders who were notdetained. Defendants detained in Texas received discounts that were 10% greater thanthe discounts given to released defendants. In Arizona, pretrial detention netted a dis-count that was 16% greater. Again, whether this is a reward from judges to those whohave provided substantial assistance to the government but who were nonethelessdetained is not known. From the results in Tables 3 and 4, however, it appears thatjudges are sympathetic to defendants who receive some type of departure from thepresumptive sentence, yet who are held in detention while awaiting their sentence.

The data presented in Tables 3 and 4 confirm that certain extralegal factors playa significant role in the magnitude of the sentence discount that departure recipientsreceive from the presumptive guideline sentence. Previous research has shown thatextralegal factors also affect the receipt of both these types of departures (Albonetti,




1997; Engen et al., 2003; Langan, 1996; Maxfield & Kramer, 1998; Mustard, 2001;Steffensmeier & Demuth, 2000; Ulmer & Miller, 2002; USSC, 1995). Hartley et al.(2007) further showed that receipt of a substantial assistance departure was affectedby race, ethnicity, and gender and that these extralegal factors had varying effects,depending on the type of narcotics case (mandatory minimum vs. guideline) forwhich the offender was sentenced. Likewise, the current study demonstrates thatboth legal and extralegal factors have significant effects on sentence length, depend-ing on the district where the case is heard. The findings of this study also demon-strate that the effects of extralegal variables on the magnitude of sentence discountsgiven by the judge for both downward and substantial assistance departures is notuniform across districts.


Table 3Ordinary Least Squares Regression Models of the

Magnitude of Sentence Discount for Downward DepartureRecipients: Data Partitioned by Districta

Texas New Mexico Arizona California

Variable B Beta B Beta B Beta B Beta

Type of drugMarijuana(reference)

Cocaine 4.11 .054 –11.06 –.140 –8.21* –.112 –7.71 –.101Offender is Hispanic 10.52 .113 5.57 .077 3.82 .056 4.09 .062Offender is female 10.79* .151 –13.38 –.177 .701 .009 2.80 .035Offender’s age –.167 –.058 1.46* .594 .202 .079 .060 .023Offender’s education

No HS (reference)HS graduate .272 .004 –5.81 –.093 –1.77 –.025 5.61 .071Some college 7.50 .081 4.65 .046 –1.98 –.022 1.91 .025

Offender detained 14.18* .220 –8.94 –.123 13.45* .173 18.34* .192Offender is anoncitizen –9.04* –.158 –28.4* –.508 –.578 –.011 6.81* .116

Constant 64.96 53.95 55.41 81.01Adjusted R2 .404 .269 .119 .257N 198 52 484 538

Note: HS = high school.a. All the independent variables (see Table 2) are included in the analyses. Full results are available fromthe author. The number of cases where a downward departure was granted for offenses involving crack,heroin, and meth was too small in each district for meaningful analysis; as such only marijuana andcocaine cases are included in this analysis. The race variable was removed from these analyses becausethere were not enough cases for comparison in which the defendant was African American and receiveda downward departure.*p ≤ .05.



Some of the variables used in the analyses had significant effects in two or moredistricts. To determine whether these variables had significantly different effects onsentence outcomes across districts, z tests for pairs of coefficients that were statisticallysignificant were carried out.4 These results, which are shown in Table 5, confirm thata number of variables inconsistently influenced prison sentence length, the magnitudeof the sentence discount for a downward, and the extent of a discount for a substantialassistance departure. Particularly noteworthy are the differential effects for the twotypes of downward departures on the length of the sentence imposed by the judge. Asillustrated in Table 5, both regular downward departures and substantial assistancedepartures had significantly different (i.e., smaller) effects on sentence length inCalifornia when compared with the three other districts. Regular downward departuresalso had a significantly different effect on sentence length in Texas when comparedwith Arizona (i.e., they produced bigger sentence discounts in Arizona than in Texas).


Table 4Ordinary Least Squares (OLS) Regression Models of the Magnitude

of Sentence Discount for Substantial Assistance DepartureRecipients: Data Partitioned by Districta

Texas New Mexico Arizona

Variable B Beta B Beta B Beta

Type of drugMarijuana (reference)Cocaine 1.13 .023 3.68 .054 –10.04 –.141

Offender is Hispanic –8.53* –.170 9.02 .156 –6.59 –.144Offender is female 6.73* .111 11.53 .158 16.2* .173Offender’s age .016 .006 –1.07* –.331 –.338 –.119Offender’s education

No HS (reference)HS graduate –.71 –.014 –8.25 –.139 –4.51 –.078Some college 1.45 .023 11.50 .131 .399 .006

Offender detained 10.09* .192 13.07 .218 16.44* .259Offender is a noncitizen –.39 –.007 1.13 .018 .141 .002Constant 66.66 92.43 91.61Adjusted R2 .140 .303 .136N 276 41 125

Note: HS = high school.a. There were only 76 cases where a defendant received a substantial assistance departure in California,and as a result, the OLS regression model could not be estimated. All the independent variables (see Table2) are included in the analyses. Full results are available from the author. The number of cases where a sub-stantial assistance departure was granted for offenses involving crack, heroin, and meth was too small ineach district for meaningful analysis; as such only marijuana and cocaine cases are included in this analy-sis. The race variable was removed from these analyses because there were not enough cases for compari-son in which the defendant was African American and received a departure for substantial assistance.*p ≤ .05.



Substantial assistance departures had a more pronounced effect on the length of thesentence in New Mexico than in Arizona (i.e., they produced bigger sentence discountsin New Mexico than in Arizona). The effect of being convicted for an offense that car-ried a mandatory minimum sentence differed significantly in Texas and in California.And those convicted for an offense involving crack cocaine rather than marijuana weremore likely to receive larger sentence enhancements in California than in Texas.

Regarding the extent of sentence discounts for cases that received regular down-ward departures, z scores for the citizenship variable reveal that it had significantlydifferent effects in Texas and in New Mexico than in California. Recall from Table3 that noncitizens received smaller sentence discounts in Texas and in New Mexicobut that noncitizens received larger discounts in California. Whether the offenderwas detained prior to sentencing, on the other hand, did not have a differentialimpact on the extent of the sentence discounts (i.e., for either downward departurecases or substantial assistance departure cases), and offender’s gender was not a sig-nificant predictor of the extent of a sentence discount given to those granted sub-stantial assistance departures.

In general, Table 5 reveals that judges in the southern district of California appearto apply the variables involved in sentencing differently than judges in the othersouthwestern districts examined here. Although there were significant differences


Table 5z Tests for Equality of Regression Coefficients Across Districta

Texas vs. New NewNew Texas vs. Texas vs. Mexico vs. Mexico vs Arizona vs.

Mexico Arizona California Arizona California California

Sentence lengthDrug minimum NA NA –6.04* NA NA NADrug type = crack NS –1.66 –2.64* NA NA 0.66Downward departure 0.64 3.26* 3.72* 1.48 3.11* 9.43*Substantial assistance 1.09 1.93 8.02* 2.26* 6.13* 5.40*departure

Offender is Black NA NA NA NA NA 4.20*Sentence discount: downwarddepartureOffender detained NA 0.12 0.71 NA NA –0.89Offender is noncitizen 1.52 NA –3.28* NA –2.82* NA

Sentence discount: substantialassistance departureOffender is female NA –1.14 NA NA NA NAOffender detained NA –0.99 NA NA NA NA

a. z tests were calculated only for pairs of coefficients in which each coefficient was statistically significant.“NA” indicates that the coefficients were not significant in each of the two districts.*p ≤ .05.



between Texas and New Mexico, Texas and Arizona, and New Mexico and Arizona,the effects were not as consistently different.

Discussion and Conclusion

Members of Congress and others believed that sentencing reforms would result inmore punitive, more effective, and fairer sentence outcomes. Although the extantresearch on the results of reforms is somewhat mixed, sentences do appear more puni-tive today than they were in the past. The obvious result has been a dramatic increasein the nation’s prison population. Whether sentencing is fairer and more equitable,however, is more difficult to assess because courtroom actors have been able to cir-cumvent and manipulate reforms. Although guideline sentences appear to be more uni-form and less disparate than sentences given previously (because there is lessinterjudge disparity and because sentences are now largely based on offense serious-ness and prior record), extralegal factors still play a role. The findings from the currentstudy provide evidence of this. Specifically, racial and ethnic minorities and women insome districts are still sentenced differently than Whites and men for drug offenses.Furthermore, this study demonstrated that departure decisions are significant predic-tors of decisions about sentence length. Given these findings, it is clear that extralegalvariables continue to influence sentencing outcomes under guideline-based sentenc-ing, even with rigorous mandatory minimums in place. Race, ethnicity, gender, and cit-izenship status, in some contexts, either directly or indirectly through departures, werestill significant predictors of outcomes in the federal criminal justice system.

Considered together, these findings, which highlight the effects of legally irrele-vant offender characteristics and interdistrict variation in the factors that affect sen-tence outcomes, suggest that discretionary decisions regarding sentence length andthe magnitude of sentence discounts for narcotics offenders introduce unwarranteddisparity into the federal sentencing process. Although the complete motivations ofjudges in each of these districts are not known, it is apparent from this study thattheir decisions are guided by both legally relevant and irrelevant factors and possi-bly because of a desire to exert discretion in certain cases. Moreover, the fact thatsome significant variables had differential effects on the outcomes studied here(z scores for pairs of significant coefficients were significantly different) providesevidence that interdistrict variation exists under the guidelines.

Analogous to previous research, this study demonstrated that even in similar dis-tricts and where the primary concern is the war on drugs, the decisions of judges mayvary, and localized sentencing practices may result in considerable sentencing vari-ation. Judges in the southern district of California were most likely to make sen-tencing decisions that differed from decisions made by judges from other districts.Whether this is because of a difference in punishment philosophy or because ofpractical or organizational factors is not known. What is evident, however, isthat attempts to make the federal sentencing system uniform and proportional via




guidelines and mandatory minimums have not produced desired effects. Despite asingle, comprehensive federal law designed to guide judicial decisions, noticeabledifferences in federal sentencing emerge at the district level.

Future research should continue to explore variations in decision-making acrossjurisdictions, especially where one single sentencing structure is in place. This cur-rent study demonstrated that case characteristics do not have similar effects across alldistricts. For instance, the presence of a drug minimum was significant in the south-ern districts of Texas and California but not in New Mexico or Arizona. Similarly, thesafety valve provision only significantly lowered sentences in one of the four districts(i.e., Arizona). A number of other extralegal variables also significantly affected thethree sentencing outcomes studied. These findings support the argument that unwar-ranted disparity still exists when federal narcotics offenders are sentenced. Futureresearchers would be wise to disaggregate federal sentencing data to the district leveland then perform analyses on the partitioned data. Such an approach would allow amore in-depth examination of whether differences exist across federal districts. It isinadvisable for one to formulate general conclusions about the effects of federal sen-tencing across all 94 district courts (Weisselberg & Dunworth, 1993).

The reforms adopted in the past 30 years have certainly altered the landscape ofsentencing in the United States. Sentencing decisions are less discretionary todaybecause their “mechanical” nature allows less room for individualized sentencing(Spohn, 2002). Alschuler (2005) contends that moving away from an individual-ized to an aggregated sentencing scheme is a step backward in the search for justcriminal punishments. Moreover, attempts to restrain judicial discretion have notaltogether eliminated unwarranted disparity in sentencing practices. The prisons inmost federal districts are overcrowded and are disproportionately filled with nar-cotics offenders who are by and large racial and ethnic minorities (Tonry, 1996).These continued disparities and the problems of prison overcrowding will surelycontinue to affect decision making at the local level and policy making in generalbecause of criticisms of disparity/discrimination and because of limited space ininstitutions.

Several recent Supreme Court decisions have again changed federal sentencingpolicy, allowing increased judicial discretion at the federal level (see Apprendi v.New Jersey, 2003; Blakely v. Washington, 2004; United States v. Booker, 2005).Whether sentencing practices have altered because of these recent rulings is unclearbecause researchers have only recently begun to study the possibility. It could beargued, however, that increased judicial discretion may lead to more frequent depar-tures and increased disparity that could, as some have speculated, further underminethe guideline’s ability to provide sentencing uniformity (Nagel & Schulhofer, 1992).

Lawmakers were incorrect to believe that blanket reform would result in moreuniform and fairer sentences. Empirical research has demonstrated that current sen-tences under reforms may not be more fair or more effective (e.g., with regard totheir deterrent effect) than they were in an earlier sentencing era (i.e., prereform).The current study shows that sentencing disparities still exist.




Notes

1. Those defendants who received a sentence of probation or a life sentence were excluded from theanalysis.

2. The variance inflation factors for the variables in all four models were below 4.3. The main purpose of these analyses is to assess whether unwarranted disparity still persists through

these two departure decisions. As such, only the results from the extralegal variables are shown and dis-cussed in Tables 3 and 4. The results of the full analyses, including the legally relevant factors, are avail-able from the author.

4. The formula used for calculating z scores used in this study is that proposed by Paternoster, Brame,Mazerolle, and Piquero (1998):


b1 − b2

SEb21 + SEb2

2

√z =

where b1 and b2 are coefficients and SEb1 and SEb2 are the standard errors of the b coefficients.

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Richard D. Hartley is an assistant professor of criminal justice at the University of Texas at San Antonio.His research interests include disparities in sentencing practices, prosecutorial and judicial discretion, andsentencing for narcotics violations. His previous research has appeared in Justice Quarterly and theJournal of Criminal Justice.




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