discrepancies in criminal sentencing 

 My  post  from last week about the Greiner & Wolos Pattanayak study of legal representation prompted many of you to comment (quite thoughtfully, I think) that the legal system appears to be working. After all, if elite lawyers get the same outcome as non-elite lawyers (or self-representation), then that points to the idea that judges really are deciding cases based on the merits -- and not based on the identity of your lawyer. 

 With that said, I wonder how those of you will react to a new Stanford Law Review  study  by  Ryan W. Scott  (Indiana Univ School of Law), which looks at criminal sentencing disparities.   


  

 Here's some context. A few years ago, Congress enacted mandatory criminal sentences that all federal judges had to adhere to. The Supreme Court eventually  declared  these unconstitutional and the end result is that those sentencing guidelines are now advisory instead of mandatory.  Federal judges now have much discretion than they did before in deciding what kinds of sentences to mete out -- and this has led to the fear that different judges will impose harsher or more lenient sentences. 

 The Scott paper tests this by looking at 2,659 sentences that were handed down by the ten judges in the District of Massachusetts, a federal trial court based in Boston. Although I wish I had seen a more nuanced causal analysis (how were the judges assigned to the cases? was it a random treatment assignment?), I find the end result compelling enough -- which is that the identity of the judge  does  matter in the eventual sentencing.  According to Scott, "[i]n cases not subject to mandatory minimum, the difference between the court's most lenient and more severe judges translates into an average of more than two years in prison." This kind of result dovetails with existing political science literature on judicial decision making, which consistently points to ideology and political beliefs as being very predictive of case outcome. 

 Given the results of these two papers, maybe what we're seeing here is that it's not the identity of the lawyer that matters in case outcome, but the identity of the judge? If so, then why do litigants (or defendants) spend so much money on lawyers? Shouldn't they be trying to game the system to try to get the best (i.e., most favorable) judges?