Booker and Beyond: Analyzing Sentencing 

Reform and Exploring 

New Research Directions 

December 7, 2021 | 1:00 PM ET 

The webinar will begin shortly 
 

 

 

Important Notification 

The opinions, findings, and conclusions or recommendations 

expressed here are those of the presenters and do not 

necessarily reflect the positions or policies of the National 

Institute of Justice of the U.S. Department of Justice. 
 

 

Dr. Nancy Merritt, PhD 

Senior Policy Advisor 

National Institute of Justice 

Raven Lewis, M.A. 

Research Assistant 

National Institute of Justice 
Dr. Jeffrey T. Ulmer, PhD 

Professor 

Pennsylvania State University 
 

 

 

 

 

 

Studies of Federal Guidelines, Judicial Discretion, and Disparity 

• Ulmer, Light, and Kramer (2011); Problematizing the narrative on advisory 

guidelines and racial disparity 

• Ulmer and Johnson (2017); judges’ perceptions of Guidelines legitimacy and 

constraint tied to departures. 

• Ulmer, Painter-Davis, and Tinik (2016); much of racial/ethnic differences come 

from factors determined before sentencing. 

• Ulmer and Parker (2020); Ulmer and Bradley (2018); disparity is complicated 

and bound up in local district contexts. 
 

 

 

 

Ulmer, Light, Kramer (2011): Problematizing the simple 

narrative on advisory guidelines and racial disparity 

The Booker/Fanfan, Gall expanded judicial sentencing discretion. Many feared this would cause an 

increase in disparity. A 2010 USSC report found racial disparity increased post-Booker and Gall. 

We provided an alternative to the USSC report, finding: 

• Race/ethnic/gender disparity in sentence length decisions was generally comparable with pre-2003 

levels 

• African American males’ odds of imprisonment increased significantly post-Gall 

• Immigration cases accounted for a significant proportion of sentence length disparity affecting 

Black males 

• “Government-sponsored” below Guidelines sentences were a greater source of racial disparities 

than judge-initiated deviations. 

We argued that the findings raised questions about whether the decisions caused increased disparity; 

whether guidelines must be mandatory in order to limit racial/ethnic/gender disparities. 
 

Ulmer and Johnson (2017); Judicial guideline departures and 

perceptions of guidelines legitimacy and constraint 

• 2005-2007 federal sentencing data, 2005 survey of federal judges, qualitative interviews. 

• Time period captures a period of uncertainty after Booker rendered the Guidelines advisory, 

but before Gall, etc. clarified what “advisory” meant. 

• Potentially a time of variation among judges in the perceived constraint and normative 

authority of Guidelines. 

• Guideline conformity/judge-initiated departures were strongly influenced by judges’ 

perceptions of guidelines as normatively legitimate, perceptions of the constraint of their 

circuit courts, and perceptions of U.S. Attorney’s offices. 
 

 

 

Ulmer and Johnson (2017); cont. 

• Post-Booker/Gall, Guidelines do not primarily exert influence through 

regulatory constraint, but through normative influence, and making 

sentencing easier, reducing uncertainty. 

• Perceived legitimacy and appropriateness of the Guidelines very 

important. 
 

 

Ulmer, Painter-Davis, and Tinik (2016); much of racial/ethnic 

differences come from factors determined before sentencing 

• Is disproportional incarceration of black and Hispanic/Latino men due to sentencing decisions 

by local courts (Type A discretion), or differential impact of sentencing policies and case 

processing factors that differentially impact minority men (Type B discretion)? 

• To what extent are racial/ethnic sentencing differences mediated by guideline factors 

(criminal history, guideline recommendations, departures) mandatories, case-processing 

(trial conviction, presentence detention) and extralegal factors (citizenship, education) 

• 2005–2009 federal court (and Pennsylvania state data) 

• Thus, most disproportionality was determined by factors that occur prior to sentencing 
 

 

 

Disparity is complicated and bound up in local district contexts 

Ulmer and Bradley (2018): Tribal-federal justice organizational coupling 

(2010 TLOA funding, traditional Major Crimes Act federal jurisdiction) 

increased sentencing severity for Native Americans; 

but increased 5K1 and govt. sponsored departures for Native Americans 
 

 

Ulmer and Parker (2020 ): Hispanic/Latinx sentencing disadvantage in 

changing immigration destinations, 2000-2002 and 2010-2012 

• No disparity in traditional destinations in either time period 

• Hispanic citizens and non-citizens both received longer sentences in new destinations and in nonimmigrant destinations circa 2000. 

• By the early 2010s, no disparity in traditional destination and emerging destinations 

• However, in 2010s new destinations (of 2000), and especially non-immigrant destinations, 

sentenced Hispanic non-citizens more harshly, especially the undocumented 

Thus, Hispanic/Latinx immigration (or lack thereof) notably affected the sentencing of Hispanic 

non-citizens before and after Booker. 
Federal sentencing disparity existed before Booker, 

and existed after, defying simplistic explanations 

relying on legal/guideline changes affecting judicial

discretion. 
Dr. Mona Lynch, PhD 

Professor 

University of California, Irvine 
Motivating Questions 

• How are policy changes responded to—and 

resisted—in varied, creative ways by legal actors? 

• How do those variations manifest as local norms 

and practices that transcend policy change? 
 

 

 

 

Quantitative Booker Study: 

• Do within-district drug case sentencing patterns demonstrate stability across 

different policy periods, indicating the influence of local norms? 

• Are the mechanisms for getting to sentence outcomes changing in response to 

policy reforms? 

• Are cases that are not subject to mandatory minimums more likely to vary from 

the guidelines compared to those that are subject to them? 

Lynch, M. & Omori, M. (2014). Legal change and sentencing norms in the wake of Booker: 

The impact of time and place on drug trafficking cases in federal court. Law & Society Review, 48, 411-445 
 

 

Quantitative Booker Study: 

• Do within-district drug case sentencing patterns demonstrate stability across 

different policy periods, indicating the influence of local norms? YES 

• Are the mechanisms for getting to sentence outcomes changing in response to 

policy reforms? SOME INDICATION, YES 

• Are cases that are not subject to mandatory minimums more likely to vary from 

the guidelines compared to those that are subject to them? NO 
Drug Sentences as % of Guideline Minimum, 1992 -2012 

100 % Guidelline Minimum 

95 

90 

85 

80 

75 

70 

65 

60 

55 

50 

Blakely/Booker –––> 
 

 

 

 

Booker Interview Study 

• What were court actors’ perceptions of how Booker changed local criminal 

practices in 4 distinct districts? 

• What specific legal strategies changed at three stages of criminal process: 

Charging, plea negotiations, & sentencing? 

Lynch, M. (2019). Booker circumvention? Adjudication strategies in the advisory sentencing guidelines era. 

N.Y.U. Review of Law & Social Change, 43, 59-108 
 

 

Multiple Effects, with Local Variation 

• Increased charging of mandatory minimum charges (and enhancements), 

especially in drug and child porn. cases, to set bottom on sentencing. 

• More threats to use MMs and mandatory enhancements in plea bargaining. 

• Bargaining in the shadow of assigned judge; including use of binding pleas to tie 

judge’s hands if plea accepted. 

• Defense forgoing plea agreements, with the right judge; more robust sentencing 

hearings. 
 

 

 

 

 

 

 

 

Implications for Internal Policy Change 

How do internal DOJ policy changes, delineated in the 2017 Sessions 

memo, impact prosecutorial practices & case outcomes in drug cases? 

• The use of drug mandatory minimums shot up. 

• Likelihood of prison increased; drug sentence lengths increased. 

• Effects were significantly driven by the appointment of a Trump-appointed 

US Attorney to impose new policy in local office. 

Lynch, M., Barno, M., and Omori, M. (2021). Prosecutors, court communities, and policy change: 

The impact of internal DOJ reforms on federal prosecutorial practices. Criminology, 52, 480-519 

Dr. Paul Hofer, PhD 

Adjunct Faculty 

Johns Hopkins University 
Crime & Justice, Vol. 48 (2019) pp. 137 -186. 
 

 

PERCENTAGE OF DEFENDANTS SENTENCED 

BELOW THE GUIDELINE RANGE 

Nationwide Quarterly Data FY2001—FY2021 60 

50 

40 

30 

20 

10 

0 

All Below Range 

Gov't Sponsored 

Non-Gov Spon 
PERCENTAGE OF DEFENDANTS RECEIVING 

VARIOUS SENTENCING OPTIONS 

Nationwide Data FY2001—FY2021 

100% 

90% 

80% 

70% 

60% 

50% 

40% 

30% 

20% 

10% 

0% 

Prison 

Intermediate 

Probation 
MEAN SENTENCE LENGTH 

AND GUIDELINE MINIMUM IN MONTHS 

All Defendants Nationwide FY2001—FY2017 

70 

60 

50 

40 

30 

20 

10 

0 

Sentence Length 

Gdline Minimum 
28 U.S. Code § 991 - United States Sentencing 

Commission; establishment and purposes 

(b)The purposes of the United States Sentencing 

Commission are to— 

*** 

(2)develop means of measuring the degree to which the 

sentencing, penal, and correctional practices are effective 

in meeting the purposes of sentencing as set forth 

in section 3553(a)(2) of title 18, United States Code. 
 

 

28 U.S. Code § 995 – Powers of the Commission 

*** 

(15)collect systematically and disseminate information 

concerning sentences actually imposed, and the 

relationship of such sentences to the factors set forth in 

section 3553(a) of title 18, United States Code; 

(16)collect systematically and disseminate information 

regarding effectiveness of sentences imposed; 
 

 

Hofer, Paul J., Ranking Drug Harms for Sentencing Policy 

Available at SSRN: https://ssrn.com/abstract=2612654 

Number of Typical Doses Minimum and Typical Social and Economic Losses 

Resulting in 5-Year Sentences Caused by Various Crimes Receiving 5-Year Sentences 

Drug Number of Doses 

Heroin 3,333 

Powder cocaine 4,166 

Crack cocaine 186 

Meth Mix 3,333 

Meth Actual 208

LSD 2,500 

Marijuana 666,666 

MDMA 430 
 

90 

AVERAGE TIME SERVED IN MONTHS 

BY BLACK, WHITE, AND HISPANIC OFFENDERS 

All Felonies FY1984—FY2017 

80 

70 

60 

50 

40 

30 

20 

10 

0 

White Black 

Hispanic 
 

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