Strategic judging under the U.S. sentencing guidelines: Positive political theory and evidence

We present a positive political theory of criminal sentencing and test it using data from the U.S. Sentencing Commission. Under the U.S. Sentencing Guidelines, judges can use "offense-level adjustments" (fact-based decision making) to lengthen or shorten the Guidelines' presumptive sentences. Judges also can use "departures" from the Guidelines (law-based decision making) to lengthen or shorten sentences. In general, departures are reviewed more strictly than adjustments by circuit (appeals) courts. Our theory predicts that a sentencing judge politically aligned with the circuit court will be more likely to alter sentences through sentencing departures than a judge not so aligned with the circuit; by contrast, our theory predicts that judges can more freely use fact-oriented adjustments to alter sentences, regardless of the circuit court's sentencing policy preferences. Our analysis of federal sentencing data largely supports the theory's predictions regarding the use of adjustments and departures and the impact of political alignment between higher courts and sentencing judges.