October 9, 2006
Are more than 99.9% of guideline sentences reasonable?
Many facets of this list of Booker reasonableness review outcomes are discouraging. But I find most troubling the fact that, a full 21 months since Booker was handed down, circuit courts have reversed only one within-guideline sentence as substantively unreasonable. Consider this fact against the reality that more than 75,000 within-guideline sentence have been imposed, and thousands appealed, since Booker. That only a single within-guideline sentence has been found unreasonable on appeal suggests that the guidelines are thought reasonable by circuit courts in more than 99.9% of all cases.
If the circuit courts generally viewed everything district courts did after Booker reasonable, this within-guideline statistic might not be so jarring. But, as this list shows, the circuits have declared unreasonable a below-guideline sentence in more than 50 cases appealed by the government (while affirming only a handful of below-guideline sentences). So, while the circuits have found 99.9% of within-guideline sentences to be reasonable, they have concluded that the district judge has issued a reasonable sentence in less than 20% of the cases in which the government appeals. Stunning (and sad).
October 9, 2006 at 08:29 PM | Permalink
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What percentage of below-guideline sentences does the government appeal, however? To what extent is the Solicitor General's office, in selecting and rejecting the cases that might be appealed, simply doing a remarkably good job of sifting out and accepting without protest almost all of the below-guideline sentences that the Circuits are likely to view as reasonable?
Posted by: Peter G | Oct 9, 2006 11:03:23 PM
Mr. Goldberger's question occurred to me too. Certainly the incentives to appeal a sentence are stronger for criminal defendants than for the government, most of the time.
Also, maybe if I read your blog more often, I'd know the answer to this, but what is it exactly that you wish you were seeing, post-Booker, that you're not? There's some intuitive appeal to the notion that, since the USSG are now advisory, courts should go against the advice more often than they are, but on what basis should they do so? For the most part, the USSG take into account the 3553(a) factors, which include the admonition that district courts should avoid unwarranted disparities.
Perhaps the fault lies with Justice Ginsburg, for joining the opinion of the other four Justices who proposed a remedy for an unconstitutional scheme that they didn't actually think was unconstitutional.
Posted by: CJ | Oct 10, 2006 7:46:05 AM
The one clear thing is that the Breyer remedial opinion almost completely nullified the effect of the Stevens merits opinion. By and large, defendants are getting exactly the sentences they would have received had Booker never been decided at all. It would be interesting to know whether that's the outcome Justice Ginsburg had in mind.
At the time, Alan Dershowitz chastised Ginsburg for taking positions that the other eight Justices found irreconcilable, without writing separately to explain herself. It's now clear how right he was.
Posted by: Marc Shepherd | Oct 10, 2006 10:03:10 AM
The Solicitor General is not hand-picking "good" appeals of ouside-the-Guidelines sentences. According to some of my AUSA friends, to the contrary, Main DOJ has instructed the offices to appeal all outside-the-Guidelines cases. They are doing so.
Posted by: Mark | Oct 10, 2006 6:05:24 PM
As one small data point to contradict what Mark said: the last two criminal appellate cases I've worked on (both 9th Circuit cases), the defendant has received a below-guideline sentence. In the first, thanks to 32-year mandatory minimum, the defendant was faced with a 65-year sentence. The district court, however, sentenced him to 32 years. The Government initially appealed, but quickly dropped it. In the second, the guideline range was something like 85-90 months. The district court sentenced him to 78 months. The Government didn’t appeal. I think both sentences would have been upheld as reasonable on appeal, given the facts of the cases. I'm curious how often the Government chooses not to appeal below-guideline sentences. Are there numbers available?
Posted by: Anon | Oct 11, 2006 9:58:18 AM