Downward Departures: The Efficacy of Judicial Discretion in Sentencing Decisions

• In Event: Examining Sentencing Issues Under the Federal Sentencing Guidelines

Abstract

In 2005, the U.S. Supreme Court in U.S. v. Booker 543 U.S. 220 converted the mandatory sentencing regime of the Federal Sentencing Guidelines to an advisory one that critics suggest preclude the goals of fairness and uniformity in federal sentencing decisions. Since Booker, magistrates have exercised judicial discretion in sentencing decisions choosing among several departure decisions including no departure, downward or upward departures or variances outside the guideline range. Departure decisions are generally made after a review of the pre-sentence investigation report inclusive of the offense severity, prior criminal history, offender characteristics, risks, and advisory sentencing guideline recommendations via the U.S. Probation Office. We examine the efficacy of the judicial discretion in departure decisions under Booker by investigating a sample of cases decided in the Southern District of New York before and after the Booker decision. More specifically, using multivariate analyses, we analyze recidivism rates for downward departure decisions and compare them against rates of other types of departures. In addition, we assess demographic and select offense factors associated with downward departure decisions, and offense types with the greatest propensity for recidivism. Sentencing policy implications of advisory guidelines are discussed.

Authors

• Frank S. Pezzella, John Jay College of Criminal Justice

• Shun Feng, John Jay College of Criminal Justice

• Matthew Fetzer, Shippensburg University

• Cynthia-Lee Maragh, John Jay College of Criminal Justice / CUNY Graduate Center