Did Making the Sentencing Guidelines Advisory Worsen Racial Disparity?

There is no settled answer. After the Supreme Court made the Guidelines advisory in 2005, the U.S. Sentencing Commission found that the gap between sentences for Black and white men grew. Federal defenders disputed that finding and pointed instead to mandatory minimums and prosecutors' charging choices.

Update (October 2026): The Sentencing Commission published a newer study in November 2023. For fiscal years 2017 to 2021, it found Black men received sentences 13.4% longer than similar white men, down from 19.1% in the 2017 report. Much of the gap came from who got probation instead of prison. See the 2023 report.

Racial disparity remains a serious problem in federal sentencing. Any look at the American justice system shows that the racial bias found in our nation is found there too. Removing open and hidden racism from the system has been an ongoing project since the mid-20th century, and it has not yet succeeded.

According to the original article, nearly 78% of federal defendants were non-white or Hispanic, and mandatory minimums were disproportionately charged against Black defendants.

The U.S. Sentencing Guidelines, written in the 1980s, were meant to make sentences more equal across the country.

The idea was that limiting judges' discretion would reduce racial gaps. That goal was not achieved. Many critics argue the bigger sources of unfair racial gaps today are mandatory minimums and prosecutors' choices, not judges. That raises a question: should the Guidelines be mandatory or advisory?

Once Mandatory, Now Advisory

U.S. Sentencing Guidelines

The Guidelines were first meant to be mandatory. For about 20 years, federal judges had to follow them.

In 2005, in United States v. Booker, the Supreme Court held that mandatory Guidelines violated the Sixth Amendment right to a jury trial. The Court made them advisory: judges must consider them but can choose a different sentence. The Sentencing Commission accepted that the Guidelines are advisory after Booker.

That gave judges more freedom. Since then, people have argued over whether that freedom made racial disparity better or worse.

The Commission's 2017 Report

In November 2017, the Sentencing Commission issued the third of three reports on how race and other factors relate to sentence length since Booker. You can read it here.

The reports found that the gap between sentences for Black and white defendants had grown since Booker. The 2017 report found Black men received sentences 19.1% longer than similar white men in fiscal years 2012 to 2016.

At the time, the Commission's acting chair called for making the Guidelines more binding again. He agreed with the reports that the advisory system had led to growing disparities, largely tied to race and gender.

The Federal Defenders' Response

In January 2018, the federal defenders issued a fact sheet challenging the report. You can read it here. The Defender Services Office is part of the Administrative Office of the U.S. Courts and supports the Sixth Amendment right to counsel and the principle of equal justice under law.

The fact sheet said:

In fact, the sentencing gap between White and Black defendants has decreased significantly since Booker was decided 12 years ago. The claim that increased judicial discretion has led to increased disparity is based on a controversial statistical model, which has been sharply criticized by credible outside researchers.

It said the model failed to account for:

1. Mandatory minimums, which still stop judges from lowering sentences for many Black defendants;
2. Racial gaps in how prosecutors charge cases and negotiate pleas; and
3. Guideline rules with unfair racial effects, such as treating crack cocaine more harshly than powder.

The defenders said much of the disparity comes from prosecutorial discretion, not judges. Most federal cases end in plea deals, where prosecutors have a lot of control over the outcome.

They also warned that mandatory Guidelines would act like mandatory minimums in every case. That would shift nearly all sentencing power to prosecutors, who decide what charges to bring and what pleas to offer.

Where Things Stand

Should the Guidelines be mandatory or advisory? The original article's answer was a resounding "we don't know." Both sides make strong points, and different statistical methods lead to different results. So the statistical fight leaves the basic question open.

In the end, it comes down to principle. Should the local judge who sees the case have room to decide? Or should judges be tightly bound by rules from Washington? The Guidelines remain advisory today.

Because the Guidelines are advisory, a defense lawyer can ask the judge to look past the range and consider the whole person, including the factors in 18 U.S.C. § 3553(a) and the need to avoid unwarranted disparities between similar defendants (§ 3553(a)(6)).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.