That’s the intriguing question raised by Joshua Fischman and Max Schanzenbach’s new article, “Do Standards of Review Matter? The Case of Federal Criminal Sentencing,” 40 J. Legal Studies 405 (2011). Schanzenbach has produced a series of fascinating empirical studies of federal sentencing over the years. Among other things, his prior work served to demonstrate that Democratic and Republican appointees tend to sentence differently. The new paper adds a new dimension to this finding by showing that Democratic district judges tend to change their sentencing practices when the appellate standard of review changes, while Republican sentencing seems relatively unaffected. In other words, to put a sharper point on the findings, Democrats seem to sentence more frequently under the guidelines range when they know they can get away with it.
Does this demonstrate that Democrats sentence based on their personal social values, rather than on legally permissible considerations, while Republicans are more faithful to the law? That’s one plausible interpretation of the data, but not the only one.
Here are some of the findings that Fischman and Schanzenbach came up with, reflecting a multivariate regression analysis of more than 250,000 federal sentences imposed between 1991 and 2007.
First, Democratic appointees are about six percentage points more likely to depart downward from the guidelines range than are Republican appointees. (422) By contrast, none of the following other judge variables correlated significantly with sentencing outcomes: race, gender, age, prior prosecutorial experience, or prior academic experience. (417) Note, however, that these results were based only on sentencing of what the authors characterized as “serious crime” — basically, violent offenses, sex offenses, and drug trafficking. Excluded were white-collar offenses. Republicans are often thought to be softer on white-collar crime, so it may be that some or all of the Republican-Democratic severity differences would disappear if all crimes were included in the analysis. Indeed, when Fischman and Schanzenbach ran all crimes through their analytical methodology, they found no statistically significant difference in downward departure rates between appointees of the two parties. (423)
Second, holding base offense levels constant, Democrats give sentences that are on average about ten months shorter than Republicans. (427) (Note, again, this finding excludes white-collar and other “non-serious” crimes. This and other findings discussed here also exclude cases involving substantial assistance departures and cases from the five southwestern border districts, which have many unique characteristics.)
Third, during periods of time when the appellate standard of review for departure decisions is more rigorous, there is no statistically significant difference in departure rates between Democratic and Republican appointees. (424) It is only during periods of relatively deferential review that the departure rates become statistically significant. More specifically, as Fischman and Schanzenbach see things, there have been two periods of deferential review. The first began in 1996, when the Supreme Court adopted an abuse-of-discretion standard in Koon v. United States, and ended in 2003, when Congress imposed a de novo standard through the PROTECT Act. The second began in 2005, when the Supreme Court overturned the de novo standard on constitutional grounds in United States v. Booker.
Interestingly, the partisan differences during periods of deference are not limited to the serious crimes category, but also appear when all crimes are studied.
Fourth, and finally, partisan differences in sentence length also become more pronounced during periods of deference:
[T]he interparty sentencing disparity increases by roughly 50 percent under deferential review. In addition, Democrats under deferential review give lower sentences than Democrats constrained under de novo review, while Republicans are relatively insensitive to review standards. (429)
The interparty sentencing disparities are troubling, for one’s sentence should not depend on the luck of the draw as to whether one’s case is assigned to a Democratic or Republican appointee. I’ve argued elsewhere against deferential appellate review of sentences, and the Fischman and Schanzenbach article seems to provide evidence that more rigorous standards of review can indeed help to reduce unwarranted disparities.
At the same time, arguments for more rigorous review in the federal system must be made cautiously, for more rigorous review is normally understood in this setting to mean more rigorous review of sentences outside the guidelines. The federal guidelines are deeply dysfunctional in a number of respects, and I do not think that we ought to regard reduced departure rates as per se a good thing. Unwarranted disparities are not necessarily the worst evil in a sentencing system.
For what it’s worth, my view is that more rigorous review should be embraced in the federal system only if (a) it is applied evenhandedly to all sentences, whether within the guidelines range or not; or (b) the guidelines themselves are simultaneously reformed.
But what are we to make of the Democrats’ inconsistency? Are they abusing deferential standards of review by injecting their personal values into the sentencing calculus?
That might be a fair inference to draw from the Fischman and Schanzenbach data if they were really able to isolate the standard-of-review variable — in other words, if all that Koon and Booker did was to tell the circuit judges to lay off the district judges.
But neither decision concerned itself merely with the role of the circuit judges. Koon embraced the “heartland” view of the departure decision, and its standard-of-review holding rested critically on the premise that district judges had an “institutional advantage” over appellate judges in deciding whether any given case was in the heartland or not. True, a Democrat who departed more frequently after Koon may have done so merely because he or she had a diminished fear of reversal. But increased departures might instead have resulted from a new understanding of the legal nature of the departure decision, including a new legal mandate from the Supreme Court for district judges to bring their unique perspectives to bear in deciding whether to sentence outside the guidelines. Indeed, perhaps it is the Democrats — and not the Republicans who stuck to their non-departing ways after Koon – who should be seen as more faithful to the law, as authoritatively interpreted by the Supreme Court.
A similar argument might be made with respect to Booker. Indeed, the argument that district judges were required to change their ways post-Booker is even more compelling than the Koon argument, for Booker explicitly overturned established law at the district and circuit levels alike. A judge who sentenced no differently pre- and post-Booker was either deviating from the guidelines too much pre-Booker or too little post-Booker. Against this backdrop, it is hard to tell whether a Democrat whose “departure” rate went up post-Booker was being more or less faithful to the law than a Republican whose rate remained the same.