The United States Sentencing Guidelines greatly restrict the sentencing discretion traditionally vested in district court judges. Since their adoption in 1987, federal judges have criticized the Guidelines more sharply than any other federal law. In 2003, Congress overwhelmingly passed the PROTECT Act. The Feeney Amendment to the Act, added late in the process, imposed further restrictions on judicial discretion in sentencing. Supporters of the Amendment argued that federal district court judges were increasingly departing below the ranges specified in the Sentencing Guidelines. Using data on all federal criminal sentences between 1993 and 2001, this essay argues that the empirical evidence put forward in support of the Feeney Amendment was deeply flawed. While the rate of downward departures increased, much of the increase can be explained by a number of potentially relevant variables such as type of offense, the offense level, district of sentencing, and offender characteristics. In addition, even though downward departures were more frequent, total prison sentences did not change during this time period because departures were smaller in magnitude. I find no evidence that the increasing number of Democratic appointees on the federal district court bench affected prison sentences or downward departures. Most importantly, there is no evidence to support the argument that judges were ignoring the Sentencing Guidelines. The percentage of prison sentences explained by explicit Guidelines factors changed little over the time period. I conclude that the radical reform undertaken by Congress was poorly informed.

Date of this Version

February 2005