Judicial Discretion and Guidelie Departures: The Conditioning Effects of Modes of Conviction

Brian Daniel Johnson, Pennsylvania State University

Recent analyses of guideline sentencing practices have demonstrated that judicial departures from the guidelines serve as a significant locus of unwarranted disparity. The authority of judges to depart from guideline recommendations risks the reintroduction of the types of unwarranted disparity that sentencing guidelines were designed to eliminate. Using recent data from the Pennsylvania Commission on Sentencing, I analyze the overall effects of various factors on judicial decisions to depart both above and below the standard guideline range, and then I reexamine these relationships according to modes of conviction. I argue that there are fundamental differences in the types and amounts of individual discretion exercised across different modes of conviction. When cases are pled, judges often rely on prosecutorial recommendations, limiting the amount of judicial discretion they are free to exercise. When cases go to trial, however, judges remain free to exercise significant judicial discretion. This difference in the amount of judicial discretion exercised, I argue, conditions the influence of multiple factors across cases convicted in different ways.

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Updated 05/20/2006