Racial disparity in the wake of Booker/Fanfan Making sense of “messy” results and other challenges for sentencing research

Inthe three decades since the first comprehensive sentencing guidelines were adopted in MN, PA, and WA scholars have produced a substantial body of research examining if, when, and how race, ethnicity, or gender still “matter” in the sentencing process (in state and federal systems). Yet it is difficult to comment on the impact of sentencing guidelines on sentencing disparity because there simply is little empirically rigorous research examining the effects of actual policy changes (i.e., the introduction, modification, repeal, etc., of sentencing laws) for sentencing practices (Engen, 2009). In this context, the study byUlmer, Light, and Kramer (2011, this issue), and the U.S. Sentencing Commission report (USSC, 2010) to which it responds, constitute important contributions to the sentencing literature.1 Like the USSC study, Ulmer et al. (2011) examine racial/ethnic and gender disparity in sentencing under the U.S. guidelines prior to, and subsequent to, several key pieces of legislation and U.S. Supreme Court decisions affecting judicial discretion, most notably the Booker and Gall decisions. However, Ulmer et al. also employ numerous methodological “choices” (a wonderfully diplomatic phrase) different from those of the Commission’s study. Consequently, Ulmer et al.’s findings also differ in some important ways from those of the USSC study. They find that the increase in disparity between White and Black males is primarily related to imprisonment decisions, as opposed to sentence length, and is largely due to sentencing disparity in immigration cases. Ulmer et al. also find that controlling for criminal history explains a substantial proportion of the disparity found by the Commission