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date: 23 March 2018

Sentencing Guideline Departures

Summary and Keywords

Sentencing guidelines were created with the goal of reducing unwarranted disparities in sentencing outcomes based on race, gender, and other legally irrelevant characteristics in order to establish a uniform sentencing system. In the 21st century, approximately 21 states and the federal courts use sentencing guidelines, although the types of guidelines used vary, with some more restrictive than others. With the quest to create more uniform sentences, scholars have examined whether the guidelines have actually reduced unwarranted disparities in sentencing outcomes. One area that has received attention from sentencing scholars as an avenue for the potential reintroduction of disparity into the sentencing process is the ability to sentence offenders outside of the guideline range, a practice otherwise known as “sentencing departures.”

Departures from guideline sentences are either below or above the suggested guideline range for a particular offense, with most departures resulting in below guideline sentences. Both judges and prosecutors have the authority to issue departures. Within the federal sentencing guideline system, prosecutors have the sole discretion to offer substantial assistance and other types of government-sponsored downward departures. The amount of discretion given to federal judges to depart from the guidelines has changed dramatically over the years, and the use of departures has subsequently increased in recent years. Research has examined whether this increase in departures has resulted in an increase in unwarranted disparity once again. This research has primarily focused on two related questions: (1) Have departures increased disparities in sentencing outcomes based on race, ethnicity, gender, or other factors? (2) Who is most likely to receive a departure sentence? Several studies have found there to be differences in likelihood of receiving departures; with African Americans, males, and offenders charged with specific types of crimes less likely to receive downward departures. Other research, however, has further suggested that the increased use of departures may not have increased sentencing disparities based on race or ethnicity. Additionally, a new scope of research has emerged which takes a more nuanced examination of sentencing departures; looking at variations among districts, policy disagreement departures, and other considerations. Ultimately, the current body of research on the use, consequences, and implications of sentencing departures has provided some mixed findings and many questions remain unresolved. As research on departures continues, our understanding of the complex nature of sentencing decisions under guideline based systems will continue to grow.

Keywords: sentencing departures, substantial assistance departures, judicial departures, federal sentencing guidelines, state sentencing guidelines


During the 1980s, the first set of comprehensive sentencing guidelines was adopted at both state and federal levels. In efforts to reduce unwarranted disparities in sentencing outcomes based on race, gender, or other extra-legal factors, states such as Pennsylvania and Washington, along with the federal courts, established guidelines meant to create uniformity and consistency in sentencing practices. Prior to this time, it was believed that the primary sources of unwarranted disparity were rooted in the abuse of judicial discretion. Flagrant racial discrimination on the part of judges was blamed for unjust sentencing outcomes, leading to harsher sentences for black offenders. In his book, Criminal Sentencing: Law without Order (1973), Judge Marvin E. Frankel’s harsh critique of the unconstrained discretion of judges to choose sentences ranging from no time in prison to a life sentence for similar crimes is often seen as the catalyst that started the movement toward more determinant or guideline based sentencing.

The amount of restrictions placed on judicial discretion has fluctuated over the years as Congress and the Supreme Court worked to balance the need for uniformity in sentencing and protecting individuals’ constitutional rights during the sentencing process. In this guideline era of sentencing, a new wave of sentencing research has emerged (Johnson & Lee, 2013) with the purpose of “examining if, when, and how race, ethnicity, or gender still ‘matter’ in the sentencing process” (Engen, 2011, p. 1139). Although guidelines were created to reduce unwarranted disparities, there remain many areas where, if unchecked, these disparities may persist. Many have questioned whether the creation of sentencing guidelines has shifted discretion (and with it, disparity) to earlier stages of the sentencing process, most specifically to the prosecutor (e.g., Caravelis, Chiricos, & Bales, 2013; Nagel & Schulhofer, 1992; Ulmer, Kurlychek, & Kramer, 2007).

In regard to the sentencing guidelines themselves, there are two areas where racial, gender, and other forms of disparity may remain. First, while the sentencing guidelines were created with the purpose of reducing unwarranted disparities, there are concerns about inherent disparities created by the guidelines themselves (Engen, 2011). For example, disparities between crack- and powder-cocaine sentencing guidelines at the federal level is highly contested (Hartley, Maddan, & Spohn, 2007b). Second, and the primary focus of this paper, is the use of judicial and prosecutorial departures to sentence individuals outside of the guideline range. One of the prominent research questions in the sentencing guideline era is whether the use of these departures represent avenues through which disparities may once again pervade in the sentencing process.

Federal Sentencing Guidelines and Departures

In 1984 Congress established the U.S. Sentencing Commission (USSC) with the purpose of devising a set of sentencing guidelines to be used by all federal judges. Three years later, the U.S. Sentencing Guidelines were implemented. Under these original guidelines, judicial discretion was greatly constrained and, up until 1996, Congress continued to restrict the discretion of judges through multiple directives to the USSC and with implementation of mandatory minimum statutes. In 1996 the Supreme Court decision in Koon v. United States moderately restored some level of judicial discretion only to be later constrained once again by Congress with amendments to the PROTECT Act of 2003 and with instructions to the USSC to reduce the ability of judges to use departures.

Then in 2005 the Unites States Supreme Court ruled in United States v. Booker that the mandatory federal sentencing guidelines were unconstitutional and resulted in the guidelines becoming advisory. Judges must consider the guidelines when determining sentences, but they were no longer bound by them as strictly as before. Subsequent Supreme Court rulings further enhanced judicial discretion with the clarification of “advisory” in Rita v. United States (2007) and directing judges to make individualized assessments of the reasonableness of guideline sentences in Gall v. United States (2007). In Kimbrough v. United States (2007) the courts further ruled that judges may disregard guidelines based on a disagreement with a prescribed policy statement within the guidelines.1 The effect of these decisions is that judges have more discretion to depart from the sentencing guidelines than at any other time in the guideline era of sentencing reform.

Scholars have noted several possible reasons as to why judges consider sentencing departures. The decision to depart primarily concerns two considerations. First, as noted by Stith and Cabranes (1998), the sentence guidelines do not give judges the opportunity to consider questions of culpability and the purpose of punishment. In order to account for differences between individual cases, judges will rely on departures to adjust for appropriate sentences based on individual or case-specific reasons. Judges may consider aggravating or mitigating factors related cases considered outside the “heartland” a basis for either an upward or downward departure. Second, following the decision in Kimbrough, judges may depart from the guidelines because of a fundamental disagreement with a specific sentencing guideline policy (see Hamilton, 2014; Kaiser & Spohn, 2014; Michelman & Rorty, 2011). Departures based on policy disagreements have largely been limited to crack-cocaine offenses, possession of child pornography, and (to a limited extent) armed career criminal statutes (Michelman & Rorty, 2011). Finally, offenders can receive a downward departure sentence based on prosecutorial rather than judicial reasons. These departures are to be based exclusively on the cooperation of the offender in providing substantial assistance to the prosecution. To date, research on substantial assistance departures has not been able to investigate the quality or quantity of cooperation or information needed for an individual to be offered a substantial assistance departure.

Federal sentencing statistics revealed that with this renewed discretion, judges sentence individuals outside of the guideline range in over half of all federal criminal cases in Fiscal Year 2015 (52.7%; U.S. Sentencing Commission, 2016). Of those cases sentenced outside of the guideline range, the majority of those received downward departures or sentences below the guideline range. Approximately 29% receive a government-sponsored (i.e., prosecutor) downward departure, and another 21% are departures under the discretion of the judge. In the next sections, this article will discuss the current research relating to the use of both judicial and prosecutorial departures. Before doing so, it is important to better understand the nature and circumstances regarding the use of departures in federal sentencing practices.

Types of Departures

Among sentencing scholars, sentences outside the guideline range are categorized into one of three groups: (1) upward departures—or those sentenced above the guideline range; (2) prosecutorial downward departures—such as for fast-track or substantial assistance; and (3) judicial downward departures. In essence, these three broad categories of departures present a concise picture of what sentencing departures often look like. Within these categories, however, are some deeper complexities. Although often considered together, there is a subtle, yet important, distinction between departures and variances. While there is a legal distinction between departures and variances, empirical research examining the effects of departures on sentencing outcomes most commonly use the general term of “departure” to refer to all sentences outside the guideline range, including variances. In line with current research practices, this entry will refer to all deviations for sentencing guidelines as “departures,” distinguishing between judicial and prosecutorial departures. Departures and variances are considered at different stages during sentencing. According to the process outlined by the Gall decision, judges must follow three steps during sentencing. First, the appropriate guideline range must be calculated. Second, judges must determine whether to apply any of the departure statements within the guidelines manual to adjust the sentence range. And, finally, judges must decide whether any variances are warranted to sentence someone outside of the guideline range.

Guideline departures result when judges diverge from the original guideline sentence calculation for reasons that are outlined by the guidelines themselves (Office of General Counsel, 2014). In other words, these are stipulated within the guideline manual for specific corrections to the guideline range or other regulatory policy purpose. For example, many of these departures are based on correcting criminal history calculations (§4A1.3; Departures based on Inadequacy of Criminal History Category; U.S. Sentencing Commission, 2013) and can also include government-sponsored departures. These reasons for departures are prescribed directly by the guidelines themselves and are considerations that had previously been deemed appropriate by the commission when drafting the guidelines. Variances, on the other hand, are changes to a sentence based on statutory factors found in 18 U.S.C. § 3553(a),2 which include a wide range of possible offense or offender characteristics that may be important in determining the reasonableness of an individual sentence. Variances based on §3553(a) offer a broad range of possible reasons for sentences outside the guideline range and are of most concern for abuses of discretion by judges. These are also often the primary focus of empirical research on departures.

Research on Federal Sentencing Departures

Sentencing departures represent a potential “locus of disparity” due to the amount of discretion judges and prosecutors are given in this decision process (Ulmer & Johnson, 2017, p. 266). As such, the vast majority of research on federal sentencing departures has been to examine inequalities associated with defendant characteristics, such as race, ethnicity, and gender, among others. In the context of sentencing departures, researchers have focused attention on answering several questions. The two questions that have received the most empirical attention, however, are the following: Have departures increased disparities in sentencing outcomes? And is there disparity in which offenders receive either judicial or prosecutorial departures? More recently, research has expanded beyond the primary concern of disparity to provide a more nuanced examination of how departures are used and why.

Have Departures Increased Disparities in Sentencing Outcomes?

The best approach to answering the question of whether the reintroduction of departures has increased disparities in sentencing outcomes is to look at changes in sentencing over time and whether there were changes in the amount of disparity before, during, and after the imposition and changes to the sentencing guidelines. Several studies have attempted to do just that. Unfortunately, quality sentencing data prior to implementation the federal sentencing guidelines is not readily available or reliable, making pre-post examinations of the effectiveness of sentencing guidelines to reduce unwarranted disparity difficult. Changes to the guidelines—most notably the transition from mandatory to advisory after Booker—allowed researchers to examine whether the “liberation” of judicial discretion to more freely depart from the guidelines reintroduced unwarranted disparity (Ulmer, Light, & Kramer, 2011b). The first of these studies to examine whether increased use of departures resulted in increased disparities was conducted by the USSC itself in 2006 and the again in 2010. In 2006, the USSC published a report on the impact of Booker on federal sentencing, which expanded judicial authority to depart from the sentencing guidelines and found relatively similar effects of offender characteristics on sentencing outcomes as pre-Booker. In their 2010 report, however, the USSC concluded that the reintroduction of discretion by making the guidelines only advisory increased racial disparity in the post-Booker period. Their results suggested that black offenders received 7% to 10% longer sentences than during the period when guidelines were mandatory.

The 2010 report by the USSC seemed to confirm many of the criticisms of judicial discretion. It confirmed that if given the opportunity, judges are likely to return to disparate sentencing practices and that the only way to stop biased sentencing practices is to more strongly restrict the freedom of judges during the sentencing process. In 2011, however, independent scholars examined the federal sentencing data and challenged some of the methodological choices made by the USSC in their 2010 study (Ulmer, Light, & Kramer, 2011a; Ulmer et al., 2011b). Most notably, in two separate studies, Ulmer, Light, and Kramer criticized the USSC for not controlling for prior criminal history, immigration offenses, and other factors that accounted for a substantial portion of the disparity in sentencing outcomes for black males.

Subsequently, in 2012, the USSC updated their report on the effects of Booker. In this report, the USSC noted that “demographic characteristics are now more strongly correlated with sentencing outcomes than during previous periods, although the Commission does not suggest that this correlation indicates race or gender discrimination on the part of judges” (U.S. Sentencing Commission, 2012, p. 3). Disputes over methodology and questions about the ability of the USSC to be objective (after all, they created the sentencing guidelines judges are departing from) lead other scholars to question the results of the USSC reports. More recently, Kim, Cano, Kim, and Spohn (2016) found that the severity of sentencing outcomes overall have been reduced after the Supreme Court decisions in Booker and Gall. This finding is not surprising given the increased use of downward departures after the guidelines were deemed advisory. They did find significant variation across district courts in terms of sentence severity, with some courts handing down more lenient sentences than others.

One consistent conclusion in this research is that the use of departures—both judicial and prosecutorial—have increased substantially since Booker. Whether the use of departures has increased unwarranted disparity, however, is not as easily determined, especially when the neutrality of the sentencing guideline policies themselves are often questioned, as will be discussed further in a later section (Bushway & Piehl, 2001; Engen, 2011; Hofer, 2007; Tonry, 1995). The next section will review the current research on the decision to depart and what characteristics may influence whether an offender receives a departure sentence.

Is There Disparity in Which Offenders Receive Departures?

The second question that often fuels researchers is whether certain groups of offenders are more or less likely to receive various types of departures. Most notably, scholars are interested in whether disparity exists in the implementation of either judicial downward departures or government-sponsored departures (i.e., prosecutorial departures). As noted previously, over half of all offenders sentenced in federal court receive a sentence that is outside the guideline range. As such, this decision point affects a substantial number of offenders and it is important to know what factors may influence this decision process.

The final sentence handed down to federal offenders is the result of the decisions of multiple actors interacting in a system. It can be difficult when examining sentencing outcomes to pinpoint where in the sentencing process problems of disparity may lay without first isolating the behaviors of individual actors (Bushway & Piehl, 2001). By focusing on departures, we are able to study the actions and decisions of individual actors within the sentencing process more exclusively and analyze the implications of their decisions more directly.

Early research on the use of departures was concerned with whether sentencing departures reduced uniformity in sentencing (Johnson, Ulmer, & Kramer, 2008; Nagel & Schulhofer, 1992; Spohn, 2005). One of the few studies to examine the use of judicial departures prior to the Booker decision was conducted by Johnson, Ulmer, and Kramer (2008). Using federal sentencing data from the years 1997 to 2000, the researchers examined both judicial and prosecutor-initiated departures and their effects on inter-court variations in sentencing. Their study found that federal district courts varied in their use of departures. With regard to judicial departures, the study found that factors such as having a higher caseload and more liberal judges increased the use of downward departures. Furthermore, this study found that black and Hispanic offenders were less likely to receive both substantial assistance and judicial downward departures and received shorter discounts compared to whites.

More recently, Fischman and Schanzenbach (2012), examined changes in departures from 1992 to 2009. Using a longitudinal design, this study looked at whether racial disparity increased or decreased as a result of changes to the federal sentencing guidelines. Through a series of analyses, the authors found that while racial disparity seemed to increase after the Supreme Court decisions that increased judicial discretion in departure use, “most of the post-RGK [Rita, Gall, Kimbrough] increase in disparity, however, is due to the increased relevance of statutory minimums under a system of advisory guidelines” (Fischman & Schanzenbach, 2012, p. 757). Specifically, they found that sentences for white and Hispanic offenders decreased after the decision in Rita. Sentences for black offenders did not decline, except in cases in which mandatory minimums were more likely.

Further attempts to understand the use and impact of judicial departures has examined how and why departures are used in some cases. As research has demonstrated, the use of judicial departures varies substantially, and questions arise as to where and why variation exists. One study, for example, examined the use of judicial departures based on policy disagreements in child pornography cases (Kaiser & Spohn, 2014; see also Hamilton, 2014). In their research, the authors found that judges were more likely to use downward departures to sentence offenders convicted of possessing child pornography compared to offenders convicted of any other type of offense. Furthermore, they found that the use of these departures was often the result of a disagreement with the sentencing guideline policy as judges believed that the sentencing range for possession offenses were disproportionate to the severity of the crime. In particular, many judges took issue with the fact that offenders convicted of possessing images of child pornography on a computer received guideline sentences that were substantially more severe than offenders who physically abused children. This disproportionality in sentences (imposed by congressional mandates) has led many judges to call into question the validity of the sentencing guidelines for those types of offenses.

Prosecutorial Departures

Thus far, this paper has focused on the discretion of judges to use departures in sentencing. There has been growing concern, however, surrounding the increased discretion and power of the prosecutor in determining sentences and offering leniency. According to the USSC, approximately 28% of offenders in 2016 received a government sponsored (i.e., prosecutorial) departure. Between 2006 and 2016, departures for substantial assistance decreased slightly from 14.4% in 2006 to 11.1% in 2015. Under the federal sentencing guidelines, prosecutors have sole discretion to offer departures for substantial assistance. Substantial assistance departures (§5K1.1) are meant to entice offenders to provide information that aids in the prosecution and conviction of another offender. Another type of government sponsored departure is known as the Early Disposition Program—or “fast track”—departure (§5K3.1) and given to offenders in exchange for waiving certain pretrial and post-conviction appeals and quick guilty pleas. Since 2006, these types of departures have increased by a small amount, from 7.4% to 8.9% in 2016.3 Interestingly, in the years prior to Booker, prosecutorial departures in all cases appeared more common, with the percentage of substantial assistance departures almost double in the pre-Booker period. Additionally, the rate of substantial assistance departures in 2016 vary considerably among different types of cases. Substantial assistance departures are most common for drug trafficking (22.6%), money laundering (26.5%), racketeering (20.5%) and others, whereas fast track departures are used almost exclusively for immigration offenses (23.2%; U.S. Sentencing Commission, 2016). The discount received as a result of these types of departures also varies. Drug traffickers receive a 47.1% decrease in their final sentence as a result of substantial assistance and those convicted of fraud receive a 75% decrease for substantial assistance (U.S. Sentencing Commission, 2016). Although these numbers are useful in understanding how often and what types of cases receive government-sponsored departures, there is no information given on what how much actual assistance offenders give in order to earn these departures. Unlike judges, prosecutors are not required to state the reasons for offering departures.

The lack of transparency in the decision to offer substantial assistance departures has led some sentencing scholars to argue that these prosecutorial-based departures are a “wellspring of sentencing disparity” (Stith & Cabranes, 1998, p. 140). One of the first studies on substantial assistance departures interviewed several Assistant U.S. Attorneys (AUSA) in three federal districts a few years after the implementation of the guidelines (Nagel & Schulhofer, 1992). In their paper, Nagel and Schulhofer noted that AUSAs are given a high level of discretion to offer substantial assistance departures and indicated that “the more sympathetic the defendant, the lower the standard for what qualifies as substantial assistance” (Nagel & Schulhofer, 1992, p. 524).

The conclusions of the qualitative work by Nagel and Schulhofer (1992)—that substantial assistance departures are a primary source for unwarranted disparity—has been validated by subsequent research. Several studies have addressed whether race, ethnicity and gender are all likely to influence whether an offender receives a substantial assistance departure and the length of the sentence discount (e.g., Albonetti, 1997, 2002; Hartley et al., 2007; Hartley & Tillyer, 2012; Johnson et al., 2008; Kempf-Leonard, Tracy, & Howell, 2001; Spohn & Fornango, 2009). In one of the earliest studies to address this issue, Albonetti (1997) found that substantial assistance departures exacerbated unwarranted disparities based on race. In particular, the results of her study indicated that substantial assistance departures resulted in a significant decrease in prison sentences compared to when the same departures were applied to black or Hispanic defendants. Johnson, Ulmer, and Kramer (2008) also found that black and Hispanic offenders were considerably less likely to receive substantial assistance departures compared to whites and also receive shorter sentencing discounts. In that same study, however, the authors found no significant district level race effects. That is, the racial composition of the community did not influence individual level substantial assistance departure decisions.

In 2007, Hartley, Maddan, and Spohn examined the use of substantial assistance departures in crack- and powder-cocaine cases, as these cases receive a high number of substantial assistance departures and African Americans are considerably more likely to be convicted of crack-cocaine offenses which carry stiffer penalties than powder-cocaine. These researchers found that offenders charged with crack-cocaine were less likely to receive substantial assistance departures and that those charged with more serious crimes, females, and white offenders were more likely to receive substantial assistance departures. Spohn and Fornango (2009) found that the effects of race on the likelihood of substantial assistance departures were significant in drug cases but not in non-drug cases. Specifically, the results of their study found that black defendants were less likely to receive substantial assistance departures than white defendants for drug related offenses; however, that pattern did not persist for non-drug-related crimes. More recently, Cano and Spohn (2012) found that substantial assistance departures were often used to circumvent mandatory minimum sentences for certain groups of offenders, primarily those with more education, employed persons, and those with children. In other words, their research found that substantial assistance departures were being used to lessen the severity of sentences for offenders which were viewed as “sympathetic and salvageable,” further supporting the findings of Nagel and Schulhofer (1992; see also Spohn & Sample, 2008).

While there has been increasing research on substantial assistance departures, less has focused on other types of prosecutorial departures. Filling this gap, Hartley and Tillyer (2012), examined the use of the fast track departure, which is a unique type of departure used to facilitate expedited case processing for immigration offenses. In their examination, the authors did not find face or age to significantly influence fast-track departure decisions, but rather these decisions were based more on legal and case processing considerations.

Departures From State Sentencing Guidelines

Much empirical work and policy discussion on the use of departures has focused on federal sentencing, especially given the dynamic changes in federal policy since the early 2000s. Beyond the federal sentencing guidelines, approximately 21 states also have sentencing guidelines (Kauder & Ostrom, 2008) and several studies have been produced using data on the use of departures in state courts. Much of this research has examined the use of departures under the Pennsylvania sentencing guideline system (Johnson, 2003, 2005; Johnson & Kurlychek, 2012; Kramer & Ulmer, 2002; Kutateladze, Andiloro, Johnson, & Spohn, 2014; Ulmer & Kramer, 1996) and a few studies have examined departures under Washington state guidelines (e.g., Engen, Gainey, Crutchfield, & Weis, 2003) or compared various state sentencing guideline systems (e.g., Johnson & Kurlychek, 2012).

The research on use of departures in state courts has been somewhat mixed in terms of what factors are most influential in departure decisions. For example, Kramer and Ulmer (1996) found legal factors such as offense type, severity, and criminal history to be the primary predictors of departure decisions under the Pennsylvania guideline system, whereas other studies found extra-legal factors, such as gender and race, among others were also significant factors (Johnson, 2003; Kramer & Ulmer, 2002). In 2003 Johnson found that the effects of legally relevant factors, such as offense severity and prior criminal history, were less significant in departure decisions than race, ethnicity, and mode of conviction, which black and Hispanic offenders less likely to receive downward departures.

A recent group of studies has started to focus attention on variations among courts and states in decision-making processes. One such study was conducted by Johnson and Kurlychek (2012), which examined juvenile offenders sentenced in adult courts in two states: one using presumptive sentencing guidelines (Pennsylvania) and the other with voluntary guidelines (Maryland). According to their results, in both types of guideline structures, juveniles sentenced as adults were more likely to receive downward departures. Interestingly, in Pennsylvania, juvenile status was also significant in predicting the use of upward departures but was often attributed to the severity of the crime and harm done to the victim.

Conclusions and Future Directions

The original intent of sentencing guidelines was to create greater fairness in sentencing outcomes, free from unreasonable disparities based on race, gender, or class. The question of the past two decades of research has been whether sentencing departures undermine the goals of the sentencing guidelines and reintroduce unwarranted disparities into sentencing outcomes. As can be seen from the above review of the research on sentencing departures, the answer to this question is decidedly mixed. While some differences have been found in the use of departures, more work is needed to better understand the extent, magnitude, and impact of these findings. Further, as will be discussed below, the purpose and potential uses for sentencing departures to remedy flawed policy introduces more complexity into an already complicated issue.

One question that has only recently drawn the attention of scholars is why do judges depart from sentencing guidelines that were designed to represent appropriate sentences for most offenders? For the most part, scholars have been focused on examining the effects, consequences, and impact of departures; as such, the examination of reasons why judges depart from the guidelines in the first place has received less attention. The focal concerns perspective (Steffensmeier, Ulmer, & Kramer, 1998) was introduced as a theoretical model to explain judicial decision making in determining sentencing. According to this perspective, judges base decisions on three factors: the blameworthiness of the offender, desire to protect the community from dangerous offenders, and the practical constraints (or social costs) of their decision. This theoretical perspective has been used to explain the decision to depart from sentencing guidelines; and, as judges rarely have sufficient information on offender dangerousness, it is argued that they are likely to rely on stereotypes and biases based on race/ethnicity and other factors to determine who should receive a departure.4

Another consideration is emerging which provides for a more complex decision-making process for departures. The ruling in Kimbrough which gave judges the authority to depart based not on individual offender circumstances but on a fundamental disagreement with the guideline policies introduced new complexities into understanding how and why judges depart. Some research has examined this directly (Hamilton, 2014; Kaiser & Spohn, 2014). Despite its quest for uniformity in sentencing, the guidelines themselves have come under fire for creating what many believe are unjust outcomes. Some criminal laws do not reflect rational, unbiased, and dispassionate assessments of harm and appropriate “normative expectations for appropriate punishment” (Engen, 2011, p. 1145; see also Frase, 2007). As noted by Engen (2011, p. 1145), “How are we to evaluate the exercise of judicial discretion, or changes in sentencing disparity, relative to guidelines that many observers, including federal judges, believe are unjust?” As such, it is possible that, in some jurisdictions, for some cases, departures are used as a remedy by judges and prosecutors to what are perceived as excessively harsh sentencing laws. Some recent studies have attempted to examine this possibility. Kaiser and Spohn (2014), for example, found that many departures for child pornography offenses were the result of disagreement with what judges saw as disproportionally harsh sentencing guidelines compared to other, more severe types of offenses. Clair and Winter (2016) also hinted at the possibility that some judges may use departures in order to correct for racially disparate impacts of facially neutral5 sentencing policies. Several scholars have also noted that prosecutors often use substantial assistance departures to circumvent mandatory minimum laws and harsh sentencing policies (e.g., Hartley et al., 2007). Future research should continue to consider the use of departures in relation to specific sentencing guideline policies, and further explore the correlates of judicial and prosecutorial departures, as well as the contexts in which they are most likely to be utilized.

Further Reading

Hartley, R. D., Maddan, S., & Spohn, C. (2007). Prosecutorial discretion: An examination of substantial assistance departures in federal crack-cocaine and powder-cocaine cases. Justice Quarterly, 24(3), 382–407.Find this resource:

Kim, B., Cano, M. V., Kim, K., & Spohn, C. (2016). The impact of United States v. Booker and Gall/Kimbrough v. United States on sentence severity: Assessing social context and judicial discretion. Crime & Delinquency, 62(8), 1072–1094.Find this resource:

Kramer, J. H., & Ulmer, J. T. (2002). Downward departures for serious violent offenders: Local court “corrections” to Pennsylvania’s sentencing guidelines. Criminology, 40(4), 897–932.Find this resource:

Michelman, S., & Rorty, J. (2011). Doing Kimbrough justice: Implementing policy disagreements with the federal sentencing guidelines. Suffolk University Law Review, 45, 1083–1127.Find this resource:

Nagel, I., & Schulhofer, S. (1992). Tale of three cities: An empirical study of charging and bargaining practices under the federal sentencing guidelines. Southern California Law Review, 66, 501–566.Find this resource:

Office of General Counsel, U. S. S. C. (2014). Departure and Variance Primer. Washington, DC: Office of General Counsel.Find this resource:

Spohn, C., & Fornango, R. (2009). U.S. Attorneys and substantial assistance departures: Testing for interprosecutor disparity. Criminology, 47(3), 813–846.Find this resource:

Stith, K., & Cabranes, J. (1998). Fear of judging: Sentencing guidelines in the federal courts. Chicago: University of Chicago Press.Find this resource:

Tillyer, R., & Hartley, R. (2016). The use and impact of fast-track departures: Exploring prosecutorial and judicial discretion in federal immigration cases. Crime & Delinquency, 62(12), 1624–1647.Find this resource:

Ulmer, J., & Laskorunsky, J. (2015). Sentencing policies and practices in Pennsylvania. In M. Tonry (Ed.), Oxford Handbooks Online in Criminology and Criminal Justice. New York: Oxford University Press. Retrieved from this resource:

U.S. Sentencing Commission. (2015). Federal sentencing: The basics. Washington, DC: U.S. Sentencing Commission.Find this resource:

Weisberg, R. (2012). The sentencing commission model, 1970s to present. In J. Petersilia & K. R. Reitz (Eds.), The Oxford handbook of sentencing and corrections (pp. 299–316). New York: Oxford University Press.Find this resource:


Albonetti, C. A. (1997). Sentencing under the federal sentencing guidelines: Effects of defendant characteristics, guilty pleas, and departures on sentence outcomes for drug offenses, 1991-. Law & Soceity Review, 31(4), 789–822.Find this resource:

Albonetti, C. A. (2002). The joint conditioning effect of defendant’s gender and ethnicity on length of imprisonment under the federal sentencing guidelines for drug trafficking/manufacturing offenders. Journal of Gender, Race & Justice, 6, 39.Find this resource:

Bushway, S. D., & Piehl, A. M. (2001). Judging judicial discretion: Legal factors and racial discrimination in sentencing. Law & Society Review, 35(4), 733.Find this resource:

Cano, M. V., & Spohn, C. (2012). Circumventing the penalty for offenders facing mandatory minimums: Revisiting the dynamics of “sympathetic” and “salvageable” offenders. Criminal Justice and Behavior, 39(3), 308–332.Find this resource:

Caravelis, C., Chiricos, T., & Bales, W. (2013). Race, ethnicity, threat, and the designation of career offenders. Justice Quarterly, 30(5), 869–894.Find this resource:

Clair, M., & Winter, A. S. (2016). How judges think about racial disparities: Situational decision-making in the criminal justice system. Criminology, 54(2), 332–359.Find this resource:

Engen, R. L. (2011). Racial disparity in the wake of Booker/Fanfan: Making sense of “messy” results and other challenges for sentencing research. Criminology & Public Policy, 10(4), 1139–1149.Find this resource:

Engen, R. L., Gainey, R. R., Crutchfield, R. D., & Weis, J. G. (2003). Discretion and disparity under sentencing guidelines: The role of departures and structured sentencing alternatives. Criminology, 41(1), 99–130.Find this resource:

Fischman, J. B., & Schanzenbach, M. M. (2012). Racial disparities under the federal sentencing guidelines: The role of judicial discretion and mandatory minimums. Journal of Empirical Legal Studies, 9(4), 729–764.Find this resource:

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(1.) For a more detailed review of the history and development of federal sentencing guidelines, see United States Sentencing Commission, 2015.

(2.) 18 U.S.C. 3553 refers to Title 18 of the United States Code (U.S.C) for Crimes and Criminal Procedures. It is the criminal code for federal crimes and procedures. Section 3553 of the U.S.C. outlines the procedures to be followed for imposition of sentences for federal crimes. Section 3553(a), in particular, states the factors to be considered during the imposition of a federal sentence.

(3.) The remaining percentage of government sponsored departures are categorized as “other below range” departures.

(4.) Although there are several theories used to explain sentencing and case decision making (including minority threat and court community perspectives) the focal concerns perspective is the most commonly applied to departure decisions. These perspectives are used to explain multiple decision points—including, but not limited to, departures—for various court and criminal justice actors. For more information on the focal concerns perspective, see Hartley, Maddan, and Spohn (2007a); Kramer and Ulmer (2009); Pierce (2008); Steffensmeier, Ulmer, and Kramer (1998); and Ulmer (1997).

(5.) Facially neutral refers to laws and statutes that as written do not discriminate against particular groups of individuals, such as by race, gender, or other protected classes under the 14th Amendment. While laws may be written to be facially neutral, in practice they may have discriminatory or disparate impacts.