The power and challenges of empirical sentencing research

I was pleased to see the Chicago Tribune today has this article, headlined “Study ties toughness of judges to politics: GOP, Democrat jurists vary on type of crime,” discussing the empirical work of Northwestern profs Emerson Tiller and Max Schanzenbach.  Though it’s unclear why research available months ago at SSRN and slated to be published in the Journal of Law, Economics & Organization next year is making headlines now, the Tribune article highlights that effective and insightful empirical research on sentencing can capture media attention.

As detailed at his faculty profile and his electronic CV, Max Schanzenbach has produced a lot of empirical research on sentencing, and I have found all his work effective and insightful and important.  And yet, I find that empirical assessments of sentencing outcomes always raise challenging (and unresolved) normative issues that are central to policy debates over sentencing reform.  As summarized by the Tribune, the Tiller & Schanzenbachpaper paper concludes that “federal judges appointed by Republicans give tougher sentences on street crime,… while Democratic appointees take a stricter view of white-collar offenses.”  But, unless and until one has a metric for the “right” level of sentencing toughness for street crime and white-collar offenses, it is difficult to know how to covert these sorts of empirical findings into policy conclusions.