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10 Criminology & Public Policy 1129 (2011).


Dueling studies of race disparity, one by the U.S. Sentencing Commission (USSC, 2010) and an alternative analysis published in this issue by Ulmer, Light, and Kramer (2011), diverge sharply in their methodological choices and in their characterization of trends in federal sentencing. The Commission’s study suggests a marked increase in race disparity, differences in sentencing outcomes between racial groups that cannot be explained by controlling for relevant nonrace factors, after the Supreme Court’s decisions in United States v. Booker (2005) and Gall v. United States (2007). Those decisions rendered the federal Sentencing Guidelines advisory and set a highly deferential standard of appellate review. The alternative analysis finds more modest changes, which are largely confined to immigration offenses and to the decision whether to impose a sentence of prison or probation.

Yet, in several of their key findings, the Commission’s research and the new analysis by Ulmer et al. (2011) reach similar conclusions. Both agree that for Black male offenders compared with White male offenders, the “in/out” decision—whether to impose a sentence of imprisonment or probation—is a source of persistent and increasing disparity. Both suggest that evidence of race disparity under the mandatory Guidelines, before 2003, was unstable and inconclusive. And surprisingly, both also indicate that race disparity affecting Black male offenders reached its lowest levels ever under the PROTECT Act in 2003 and 2004, when the Guidelines were at their most mandatory and inflexible and departures were closely policed through de novo appellate review.

Although narrow, those areas of agreement have potentially important implications for sentencing law. This policy essay evaluates the support that the new research lendsto several paths forward for federal sentencing. It focuses on three possibilities: a system of “dispositional departures” to regulate the prison/probation decision; a rollback of the Booker remedial opinion that would restore the PROTECT Act regime, augmented by jury fact finding; and a new proposal to simplify the Guidelines championed by Judge William Sessions, the former Chair of the Sentencing Commission (the “Sessions proposal”). It concludes that the best approach, based on the current body of research, may be “none of the above.” As a postscript, however, it urges that the new studies of race disparity be evaluated in the context of related research on interjudge sentencing disparity.