We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the other hand, are routinely used to maximize sentencing preferences regardless of party alignment between the two courts. Our regression analyses suggest that the theory is largely supported. We find that: (1) Democrat appointees generally gave lower prison sentences relative to Republican appointees for crimes of violence, theft and drug-trafficking and (2) sentencing instruments were selectively used to raise or lower the prison sentence based on the political ideology of the judge, the type of crime, and whether there was political alignment between the district and circuit court.
Law and Economics | Law and Society | Public Law and Legal Theory
Date of this Version
Max M. Schanzenbach and Emerson Tiller, "Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence" (May 2005). Public Law and Legal Theory Papers. Working Paper 1.