IDEAS home Printed from
   My bibliography  Save this article

Strategic Judging Under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence


  • Max M. Schanzenbach
  • Emerson H. Tiller


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. Copyright 2007, Oxford University Press.

Suggested Citation

  • Max M. Schanzenbach & Emerson H. Tiller, 2007. "Strategic Judging Under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence," Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(1), pages 24-56, April.
  • Handle: RePEc:oup:jleorg:v:23:y:2007:i:1:p:24-56

    Download full text from publisher

    File URL:
    Download Restriction: Access to full text is restricted to subscribers.

    As the access to this document is restricted, you may want to search for a different version of it.

    References listed on IDEAS

    1. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 1-54 National Bureau of Economic Research, Inc.
    2. Burbidge, John B. & James A. DePater & Gordon M. Meyers & Abhijit Sengupta, 1997. "A Coalition-Formation Approach to Equilibrium Federations and Trading Blocs," American Economic Review, American Economic Association, vol. 87(5), pages 940-956, December.
    3. Sylvaine Poret, 2001. "The Illicit Drug Market : Paradoxical Effects of Law Enforcement Policies," Working Papers 2001-02, Center for Research in Economics and Statistics.
    4. Nicolas Marceau & Gordon M. Myers, 2000. "From Foraging to Agriculture," Cahiers de recherche CREFE / CREFE Working Papers 103, CREFE, Université du Québec à Montréal.
    5. Skaperdas, S. & Syropoulos, C., 1993. "Gangs as Primitive States," Papers 92-93-02, California Irvine - School of Social Sciences.
    6. Ray, Debraj & Vohra, Rajiv, 1999. "A Theory of Endogenous Coalition Structures," Games and Economic Behavior, Elsevier, vol. 26(2), pages 286-336, January.
    7. Garoupa, Nuno, 2000. "The Economics of Organized Crime and Optimal Law Enforcement," Economic Inquiry, Western Economic Association International, vol. 38(2), pages 278-288, April.
    8. Hart, Sergiu & Kurz, Mordecai, 1983. "Endogenous Formation of Coalitions," Econometrica, Econometric Society, vol. 51(4), pages 1047-1064, July.
    9. Besley, Timothy, 1989. "Commodity taxation and imperfect competition : A note on the effects of entry," Journal of Public Economics, Elsevier, vol. 40(3), pages 359-367, December.
    10. Neher, Philip A, 1978. "The Pure Theory of the Muggery," American Economic Review, American Economic Association, vol. 68(3), pages 437-445, June.
    11. Bernheim, B. Douglas & Peleg, Bezalel & Whinston, Michael D., 1987. "Coalition-Proof Nash Equilibria I. Concepts," Journal of Economic Theory, Elsevier, vol. 42(1), pages 1-12, June.
    12. Caulkins Jonathan P., 1995. "Domestic Geographic Variation in Illicit Drug Prices," Journal of Urban Economics, Elsevier, vol. 37(1), pages 38-56, January.
    Full references (including those not matched with items on IDEAS)


    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.

    Cited by:

    1. William Harbaugh & Naci Mocan & Michael Visser, 2013. "Theft and Deterrence," Journal of Labor Research, Springer, vol. 34(4), pages 389-407, December.
    2. Nicola Gennaioli & Andrei Shleifer, 2008. "Judicial Fact Discretion," The Journal of Legal Studies, University of Chicago Press, vol. 37(1), pages 1-35, January.
    3. Todd Sorensen & Supriya Sarnikar & Ronald L. Oaxaca, 2012. "Race and Gender Differences under Federal Sentencing Guidelines," American Economic Review, American Economic Association, vol. 102(3), pages 256-260, May.
    4. Tim Friehe & Thomas J. Miceli, 2016. "Law Enforcement in a Federal System: On the Strategic Choice of Sanction Levels," The Journal of Legal Studies, University of Chicago Press, vol. 45(1), pages 73-103.

    More about this item


    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:oup:jleorg:v:23:y:2007:i:1:p:24-56. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Oxford University Press) or (Christopher F. Baum). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.