The study examined sentencing data from Minnesota, Michigan, and Virginia, states chosen to represent different degrees of "mandatoriness" in their guidelines. Minnesota was the strictest, and Virginia's guidelines were expressly advisory. The data are from 2002 and 2004, and hence before the Blakely decision or before that decision had much impact.

The study examined how well the sentences actually imposed could be predicted by models based on the guidelines criteria. To no one's surprise, the "variance explained" by the model is greater in the mandatory system than in the advisory one. If the law directs the judge to sentence on factors A, B, and C, then the sentence imposed will depend on those factors to a greater degree than if the judge is also permitted to consider non-guidelines factors D, E, and F. Even in Virginia's advisory system, though, the sentence depends on the guidelines factors to a very large extent.

Assessing "consistency" is a lot easier than assessing "fairness," though. Is it "fair" that defendants who are similarly situated on factors A, B, and C but different on factors D, E, and F should get different sentences in Virginia? Is it "fair" that they should get the same sentence in Minnesota?

There are some factors that most people would agree should not matter, race being the most obvious. On this point, the NCSC study produces a very encouraging result.

The news from the current research is that while a small number of statistically significant racial effects were found across the three states, all were substantively small with minimal impact on actual sentence decisions. For example, while race alone is not significant in Michigan and Minnesota, the subgroup of young black males has a slightly greater chance of being sent to prison of less than one percent. In Virginia, the guidelines have eliminated almost all evidence of racial differences in sentencing across the six crime groups examined with one exception. Black males register a slight increase in predicted sentence length for the Assault crime group.

So, this study supports the view that the states can deal with Blakely as the Supreme Court did with the federal system in Booker, i.e., make the guidelines advisory, without giving up the discrimination-inhibiting effect of a guidelines system. The study also found that the sex bias effect, while statistically discernible, was small. Although the study does not mention it, I also found it heartening that the Southern state shows no more evidence of racial discrimination than the two Northern states.

Consistent with the research on capital sentencing, this study found that sentences for similar crimes tend to be lower in the jaded urban centers (Detroit and, to a lesser degree, Minneapolis) than in the smaller cities and rural areas. The study calls this "unwarranted disparity," but that is a matter of opinion.**

With the above factors controlled, what explains the remainder of the variance from the guideline-criteria model? If it is judges properly considering legitimate differences in the cases which are not taken into account by the guidelines, that is a good thing. If it is variation in the judges themselves, that is a bad thing. This study doesn't tell us.

There are always more questions to be examined. That is the nature of research.


* The post-Furman fixes worked on the issue of greatest concern, discrimination against minority defendants. Now even a die-hard opponent of the death penalty says, "It's not the race of the defendant that is the major factor, and I don't think there are many studies that claim that."

** To date, I have not heard anyone call for a moratorium on imprisonment due to this shocking "geographic disparity."