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123 Yale L. J. 2 (2013-2014)
Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker

handle is hein.journals/ylr123 and id is 12 raw text is: SONJA B. STARR & M. MARIT REHAVI
Mandatory Sentencing and Racial Disparity:
Assessing the Role of Prosecutors and the Effects of
A BST R ACT. This Article presents new empirical evidence concerning the effects of United
States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial
disparities in federal criminal cases. Two serious limitations pervade existing empirical literature
on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the
presumptive sentence or similar measures that themselves result from discretionary charging,
plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are
excluded from the resulting sentence-disparity estimates. Our research has shown that this
exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity
consequences. Second, existing studies have used loose causal inference methods that fail to
disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and
In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to
assess Booker's effects on disparities in charging, plea-bargaining, and fact-finding, as well as
sentencing. We disentangle background trends by using a rigorous regression discontinuity-style
design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S.
Sentencing Commission), we find no evidence that racial disparity has increased since Booker,
much less because of Booker. Unexplained racial disparity remains persistent, but does not
appear to have increased following the expansion of judicial discretion.
A U T H O R S. Sonja B. Starr is a Professor at the University of Michigan Law School. M. Marit
Rehavi is an Assistant Professor of Economics at the University of British Columbia and a Fellow
of the Canadian Institute for Advanced Research. For helpful comments and conversations, we
thank David Abrams, Daron Acemoglu, Alberto Alesina, Joe Altonji, Alan Auerbach, Nick
Bagley, John Bronsteen, Ing-Haw Cheng, Kristina Daugirdas, John DiNardo, Avlana Eisenberg,
Leonid Feller, Nicole Fortin, Nancy Gallini, Nancy Gertner, David Green, Sam Gross, Don
Herzog, Jim Hines, Jill Horwitz, Thomas Lemieux, Justin McCrary, Julian Mortenson, Brendan
Nyhan, J.J. Prescott, Eve Brensike Primus, Adam Pritchard, Jeff Smith, Sara Sun Beale, and
participants at the Ninth Circuit Judicial Conference, the National Sentencing Policy Institute,
the NBER Summer Institute, the annual meetings of the American Law and Economics
Association and the American Society of Criminology, workshops at the University of Michigan,
UBC, Duke, and Loyola-Chicago, and the CIFAR-IOG Workshop. Sharon Brett, Michael Chi,
Michael Farrell, Ryan Gersovitz, Seth Kingery, Matthew Lee, Midas Panikkar, Art Robiso,
Sabrina Speianu, and Adam Teitelbaum provided able research assistance.


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