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February 2, 2009

Departure patterns as a guide to whether guidelines are balanced

GUIDELINES_graphic_COLOR_thumb This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

February 2, 2009 at 06:48 PM | Permalink

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The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom.

I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation: With 5% of the world's population, our country now houses 25% of the world's reported prisoners. Incarcerated drug offenders have soared 1200% since 1980. Four times as many mentally ill people are in prisons than in mental health hospitals. Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.

Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society. America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.

We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

MATERIALS & RESOURCES Read the legislation, S. 714 Fact sheet on the legislation Senator Webb's floor speech introducing the legislation PARADE Magazine cover story, "What's Wrong with our Prisons?" Senator Jim Webb,

Sunday March 29, 2009 The scope of the problem: relevant charts and graphs List of Support for the National Criminal Justice Commission Act Of 2009 Opening Statement of Sen. Webb at Judiciary Subcommittee Hearing on National Criminal Justice Commission Act, June 11, 2009 Watch Senator Webb's Floor Speech Introducing the Legislation, March 26, 2009 Senator Webb's article on the Huffington Post, "Why We Must Reform Our Criminal Justice System" MATERIALS FROM PAST HEARINGS, SYMPOSIUMS Joint Economic Committee Hearing, conducted by Senator Webb, "Mass Incarceration in the United States: At What Cost?" October 2007 Joint Economic Committee Hearing, conducted by Senator Webb, "Illegal Drugs: Economic Impact, Societal Costs, and Policy Responses,"

June 2008 George Mason University Symposium, hosted by Senator Webb and the GMU Administration of Justice Department, "Drugs in America: Trafficking, Policy and Sentencing," October 2008 Senator Webb's Keynote Address to the Brookings Institution's Policy Roundtable on the Challenges to Prisoner Re-entry, December 2008 NEWS ARTICLES & COMMENTARY Virginian Pilot editorial: "Time to reconsider U.S. justice system," April 6, 2009 Fredericksburg Free-Lance Star: "Behind-bars review," April 5, 2009 The Washington Post Writers Group: "Webb Leads the Charge for Much-Needed Drug, Prison Reform," April 5, 2009 Economist: "A Nation of Jailbirds," April 2, 2009 Daily Press: "Go After the Real Problem," March 31, 2009 New York Times: "Reviewing Criminal Justice," March 30, 2009 Lynchburg News & Advance: "Webb Takes on Politics' Third Rail: Prison Reform," March 29, 2009 Salon.com: "Jim Webb's courage v. the "pragmatism" excuse for politicians," March 28, 2009 The Virginian Pilot Editorial:

"Time to Rethink Goals of Prison," January 5, 2009 Roanoke Times Editorial: "The Criminal Justice System Needs Help," January 5, 2009 Las Vegas Sun Editorial: "Voice for Broken Prisons," January 3, 2009 U.S. News & World Report: "James Webb Shows Leadership Regarding Prison Reform," January 2, 2009 New York Times Editorial: "Sen. Webb's Call for Prison Reform," January 1, 2009 Washington Post: "Webb Sets His Sights On Prison Reform,"

December 29, 2008 Daily Press: "Alternative to Jail for Addicts Gains New Supporter," December 28, 2008 The Virginian Pilot: "Senator Elevates Debate on Failed Drug, Prison Policies," October 18, 2008 The Roanoke Times Editorial: "A Sensible Call for Sentencing Reform," October 13, 2008 Washington Post Op-Ed: "Two Separate Societies: One in Prison, One Not," April 15, 2008

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