Judicial Discretion: There's Good News, and Some Pretty Bad News

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It's heartening to know that the American public has gotten to the point where it almost universally recognizes the failure of mandatory minimum sentencing policies to make our communities stronger. But as greater emphasis is being placed on the importance judicial discretion in sentencing, a new comprehensive study from the Bureau of Justice examining this practice has revealed some unintended and unsettling consequences.

In 2005 with the ruling in Booker v. United States (which meant that Federal Sentencing Guidelines could now be considered as strictly advisory) we began to see greater sentencing flexibility granted to judges in sentencing. The study, Federal Sentencing Disparity: 2005-2012 sought to examine the practical impact those changes have had on defendants.

Much has been made of the new "discretionary" powers granted to judges post-Booker. In general, our perception of such a concept is that it might afford greater opportunities for justness in a system which, under the mandatory minimums regime, was hardly known for its fairness. But the study's findings are very much a double-edged sword. While they demonstrate that judicial discretion is leading to shorter sentences better correlated to the severity of the crimes, the justness of said application is still very much in question. That's because it's become apparent that judges are applying that discretion in a manner that disproportionately favors white defendants.

Accounting for all applicable variables, black men in the judicial system are receiving far harsher sentences than their white counterparts, and the disparity has been growing. The study's authors do not identify the source of that disparity, but cautions that it's a finding that should not be ignored: "We are concerned that racial disparity has increased over time since Booker. Perhaps judges, who feel increasingly emancipated from their guidelines restrictions, are improving justice administration by incorporating relevant but previously ignored factors into their sentencing calculus, even if this improvement disadvantages black males as a class. But in a society that sees intentional and unintentional racial bias in many areas of social and economic activity, these trends are a warning sign. It is further distressing that judges disagree about the relative sentences for white and black males because those disagreements cannot be so easily explained by sentencing-relevant factors that vary systematically between black and white males."

The study, while troubling, serves as important reminder of the complexity of our judicial system. Because while there's little question that ending mandatory sentencing guidelines makes for a more just system, such changes are meaningless in the presence of systemic and institutionalized discrimination in that same system.