March 19, 2007
Can the USSC's post-Booker data be trusted?
Though I have been (justifiably?) critical of the US Sentencing Commission's substantive work since Booker, I have generally been (justifiably?) complementary of the USSC's data work since Booker. However, this line in footnote 12 in Judge Young's stunning Richardson opinion (basics here) has me worried about whether anyone should put too much stock in even the USSC's data work:
The Sentencing Guidelines statistics for the District of Massachusetts ... are, in actuality, seriously flawed. Through a combination of reporting errors, categorization errors by Commission staff, and the Commission’s obdurate refusal even to look at the opinions, transcripts, and detailed orders that explain actual sentences in this District, the reported departure rate is significantly overstated.
March 19, 2007 at 07:26 PM | Permalink
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Probably not, especially if the data fails to confirm or comport with Professor Berman's pre-existing ideological assumptions.
Posted by: Anonymous | Mar 21, 2007 4:21:16 PM
Prof. Berman has nothing to do with it.
The district judges in the District of Massachusetts did officially inform the USSC that its data significantly overstated the rate of outside guideline sentences in the district. The district court wisely keeps its own statistics. Perhaps the judges found it necessary to correct the USSC after the USSC's March 2006 Booker Report listed D. Mass. at the bottom of its list of districts "Ordered by Decreasing Rates of Guideline Conformance," with "Guideline Conformance" defined as within the guideline range or pursuant to a government-sponsored motion for a below-guideline sentence. Funny, the USSC did not publish a hit list of US Attys' Offices by district according to their rates of motions for substantial assistance and fast track departures, which create more "dis-uniformity" than any other source. Oh, and the Report was published coincident with the USSC's request to Congress for a Booker "fix," to reign in judges (but not prosecutors). And one more thing. A careful analysis of USSC's method of categorizing government-sponsored versus judicial departures and variances (explained in Appendix B of this Booker Report) shows that it attributes some government-sponsored departures and variances to judges (even after the PROTECT Act debacle). Unless the judge checked a box stating "government motion," although the majority of judges did not use a form with such a box by the time this report was published, the USSC method assumed (and presumably continues to assume) that the government never moves for, joins in a motion for, or otherwise assents to a motion for any downward departure or variance unless it is for one of a brief list of specified "government sponsored reasons." So, all of those times the government moved for, joined in or went along with a below-guideline sentence based on diminished capacity, family circumstances, etc.? Those went into the judges' column.
So, yes, the data is faulty: it understates government departures, and overstates judicial departures.
Posted by: anon 2 | Mar 22, 2007 3:06:03 PM