94 Different Countries? Time, Place, and Variations in Federal Criminal Justice

Frank Zimring and Gordon Hawkins’s 1991 book, The Scale of Imprisonment, was a pioneering intellectual effort to explain what was then just coming into view to social scientists and legal scholars: the massive growth and transformation of American criminal justice, particularly as manifested in what soon came to be called mass incarceration. Zimring and Hawkins endeavored to disentangle multiple forces in play, ranging from formal law, to local and regional legal norms, to a series of broader social and political transformations. In doing so, Zimring and Hawkins set out to disentangle the complex, multi-jurisdictional political and legal structures that govern imprisonment policy in the U.S. In this Article, I apply their insights about locale-based variations in criminal justice operations over time to the case of federal sentencing. Specifically, I empirically examine variations in how the “criminal history” provision of the federal sentencing guidelines is applied as a function of both time and place to demonstrate the limits of formal law in accounting for punishment outcomes. In doing so, I hope to shed additional light on how vast differences in legal practices and outcomes are produced, especially in response to top-down legal change.