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May 26, 2005

Data junkies rejoice! New post-Booker data from the USSC

Sure enough, as predicted and promised, this afternoon has brought a wealth of new post-Booker sentencing data from the US Sentencing Commission.  The USSC's Booker page describes this latest data report as "an extensive set of tables presenting data on post-Booker cases received, coded, and edited as part of the Commission's post-Booker project.  The numbers are prepared using data extracted at close-of-business on May 5, 2005."

As I was hoping, the new data is broken down with a lot of specificity in this 39-page pdf file.  I am sure there are lots of interesting stories to be found in all this data, and I hope to mine and discuss notable data tidbits as I find them.  Readers are, of course, encouraged to do the same in the comments.

UPDATE: Perhaps the only datum that quickly jumps off these pages is the evidence of a decline in the number of "traditional" judicial downward departures after Booker.  According to this chart from the USSC's FY 2003 data, the judicial "other downward departures" rate was 7.5% before Blakely and Booker came along.  But this latest post-Booker data run reports the judicial downward departure rate at only 2.7% in the wake of Booker.  Of course, this does not mean sentencing is getting tougher; rather it just reveals that a lot of what used to be judicial departure work is now being done through downward Booker variances, which the latest data shows occurs in 10% of all cases. 

For reasons discussed in prior posts here and here, this migration from traditional departures to variances is not all that surprising.   It also raises an interesting question as to whether the USSC or the appellate courts ought to try to counter this migration, or instead embrace the prospect of having "traditional" judicial downward departures evaporate after Booker.

May 26, 2005 at 05:35 PM | Permalink


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I am a law professor at Ohio Northern and was at the conference in San Francisco this past week. I think it important to also note, on the issue of numbers of departures vs numbers of variances post-Booker, that the trends are very difficult to gage given reporting and coding problems. The folks from the USSC noted first that many judges were not reporting the reasons for the downward departures in a very complete manner. In addition, it may be difficult to code the lower sentence as a departure or a variance if both reasons are given by the sentencing judge.

Posted by: Bryan H. Ward | May 31, 2005 12:55:39 PM

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