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September 27, 2004

Please, please share your data USSC

I have a lot to say about the reply brief filed today by the Acting Solicitor General in Booker and Fanfan, and I hope to comment at length about the substance of the brief in future posts. But I have to note one fascinating, and disconcerting, representation in the SG's reply brief concerning the number of cases that involve Blakely factors.

As highlighted here, I have long been wondering about exactly how many federal cases involve Blakely factors; this seems like a very important fact for many reasons. Critically, last week, the Wall Street Journal reported (as noted here) that, "according to a U.S. Sentencing Commission internal memo," "[m]ore than 44% of all cases in 2002" involved Blakely factors. But we hear a quite different story on page 19 of the SG's reply brief:

The Sentencing Commission advises that, based on staff analysis of 2002 statistics, approximately 65% of federal criminal cases are projected to involve the application of sentence-enhancing Guidelines factors.

And two months ago a US Sentencing Commissioner was quoted (as noted here) saying that only 20% of all federal cases involve Blakely factors.

Whatever the reality, I really wish the USSC would share the data it has assembled in its "internal memo" with the rest of the world ASAP. I suppose I am glad to hear that the press, and not just DOJ, gets access to US Sentencing Commission data analysis, but how about the rest of us? Needless to say, the work of the defense lawyers who filed briefs last week might have been enhanced, to everyone's benefit, if all counsel in Booker and Fanfan had access to this information.

Especially since the number of Blakely-impacted cases is a very important issue, and one that the Wall Street Journal and the Acting Solicitor General apparently assess quite differently, it would be helpful if the USSC would at this critical time make its work public. I trust the USSC has nothing to hide and that many benefits would flow from having this information publically available.

September 27, 2004 at 09:15 PM | Permalink

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Comments

Steve (from probation) indicated in a comment on the 9/21 blog that not that many cases would be affected, if I read his comments correctly.

Posted by: Shelly | Sep 28, 2004 12:56:36 PM

The Commission's data is open to anyone to answer the question as to how many cases MAY be affected by the Blakely decision. I have used the data to attempt to answer the question and it really depends on how you interpret Blakely. I am sure the Commission realizes this and doesn't release these figures because they may be misused by this blog and others....for example, has this blog attempted to identify which cases may be affected? Is it just those cases in which SOC's are used? Those in which recency of criminal history is applied? Upward departures? Cases with a determination of drug or loss amounts? As you can see, there are a lot of assumptions that may be used in such an analysis and that's why it's dangerous for an agency to do so. Get your hands dirty and try use their data to answer it yourself!

Posted by: Kelly | Sep 28, 2004 1:40:52 PM

Kelly, it is for the very reasons you suggest that I want the USSC to make public the information they are apparently giving to DOJ and the SG and to no one else. As you rightly note, the data question "really depends on how you interpret Blakely." We know how the SG wants to interpret Blakely, and thus how DOJ/SG represents the USSC data is questionable. The fact that the SG represenation contradicts a Wall Street Journal report, which in turn contradict what a USSC Commissioner said, all provides a reason for having this debatable data publically avaiable for a public debate. Keeping data hidden because it might be mis-used seems antithetical to the entire goal of honesty in sentencing reform.

If I get any USSC data, I promise to just report and analyze it and not to misuse it. In the meantime, as you will see in a coming post, I am in fact going into the data myself.

Posted by: Doug B. | Sep 28, 2004 2:14:25 PM

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