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December 1, 2004

Dynamic and debatable preliminary USSC data

Though providing only a sliver of preliminary information about post-Blakely federal sentencings in July and August, the information made available by the US Sentencing Commission in three pretty charts here is fascinating on many levels.  Heeding the USSC's warning that this data is preliminary and thus "should be viewed cautiously," I won't (and really can't) reach any firm conclusions based on this data.  But I think I can make a few preliminary observations about what this data might tells us (and not tell us) about some post-Blakely realities of federal sentencing:

1. Despite all the Blakely uncertainty, it seems that the vast majority of criminal cases — apparently more than 80% — still moved through the federal system in the months after Blakely.  More than 10,000 federal sentences were imposed in July and August.  This represents a tangible reduction in total sentences imposed, which probably reflects the impact of Blakely, but the federal criminal justice system apparently still functioned pretty well throughout the summer.

2. These numbers hint that a majority — perhaps a large majority — of federal cases either (a) do not involve Blakely factors, or (b) do not involve contested Blakely factors that are extraordinarily consequential.  Though the government represented to the Supreme Court that perhaps as many as 2/3 of all federal cases involve Blakely factors, the preliminary case processing data suggests to me that a much, much smaller percentage of cases involve contested and/or consequential Blakely factors.

3. As highlighted in the third chart, cumulative national data mask important circuit variations.  The Second and Seventh Circuits experienced the most significant relative decline in sentencings in the two months post-Blakely, while there were relative increases in sentences imposed in the Eighth and Tenth Circuit.  The other circuits scattered between these extremes in diverse ways.

4. Mixes in caseloads, as well as different Blakely rulings and different case-specific circuit and district practices, surely account for some variations in case processing.  I would guess that nothing can significantly slow down fast-track immigration cases in the border districts, whereas fraud cases may be touched most by Blakely concerns and lead to the most postponements.  And whether a district's public defender office is comfortable with Blakely waivers has a significant case processing impact.

5. I am already now eager to see additional analyses by the USSC of this data and also to see additional data from September to November as it becomes available.  The month-by-month story is especially interesting since there was a sizeable decline in the relative number of sentencings in July, while August registered only a blip.  But I would speculate there might actually be more case processing delays in the fall as courts postpone cases on the belief that Booker and Fanfan will be decided in short order.

6.  The USSC and its staff deserve both praise and thanks for this valuable data release and all of its work in this arena, and I look forward to its Booker/Fanfan page continuing to expand in such informative ways.

December 1, 2004 at 01:14 AM | Permalink


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I am a criminal defense attorney. Any good law on attacking a guideline stipulation in a plea agreement where the agreement and plea were entered pre Blakely and sentencing is yet to take place?

Posted by: John Kaley | Dec 1, 2004 6:01:16 PM

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