Estimating Prosecutorial and Judicial Discretion in Sentencing Under Guidelines

Rodney L. Engen, North Carolina State University
Randy R. Gainey, Old Dominion University

A frequent criticism of sentencing guidelines is that discretion and control over sentencing outcomes shift from the judge to the prosecutor, and, as a result, the goals of fairness and uniformity in sentencing may be easily circumvented. However, little is known about the effects of prosecutorial discretion on sentencing outcomes under guidelines, and it is unclear what the effects of prosecutorial discretion are on sentences relative to the effects of judicial discretion. This paper outlines an approach for estimating the contribution of prosecutorial discretion in charging and plea-bargaining, relative to judicial discretion in sentencing, on sentencing outcomes and on unwarranted disparities in sentencing. We illustrate this approach using data on a random sample of approximately 300 felony drug convictions collected from prosecutor's case files in three counties in Washington State. Preliminary findings indicate that the decision to sentence a drug offender to prison is explained primarily by the seriousness of the offense alleged at the time of arrest, and by the seriousness of charges filed and routinely reduced by prosecutors. The exercise of discretion by judges explains very little by comparison.

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Updated 05/20/2006