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November 5, 2009

As Booker approaches five, the individual/equal justice debate continues on

Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules.  The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice. 

The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:

[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.

"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....

Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime.  But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.

Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences.  Average prison sentences for fraud increased to about two years in the nine months ended in June 2009.  That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.

But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago....   The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.

For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s.  "You see the most disparity and the most potential for disparity, and I think that's a bad thing."

Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom.  "To me," he says, "that risk is tolerable."

Concern that the relaxed guidelines are creating unfair disparities appears to be growing.  In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."

November 5, 2009 at 01:13 AM | Permalink


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Yes Attorney General Holder, we have returned to the days of yesteryear, when timing and luck of the draw meant more than the merits of the case. Idiosyncratic justice is no justice at all.

Posted by: mjs | Nov 5, 2009 9:59:14 AM

I would be more interested in what is going on at the state level. Plenty of them had similar sentencing regimes and states are where the vast majority of convictions take place.

Posted by: Soronel Haetir | Nov 5, 2009 10:30:06 AM

"Average prison sentences for fraud increased to about two years in the nine months ended in June 2009."

I would have preferred to know what the median sentence did in the nine months ended June 2009. Presumably, Madoff's 150 year sentence is really skewing the mean white collar sentence for this time period.

Posted by: DEJ | Nov 5, 2009 11:43:45 AM

Soronel: Each state has its own sentencing scheme making inter-state comparisons devoid of meaning. The federal system-where a network of 94 judicial districts presumably work under the same parameters is the more practical focal point.

Posted by: mjs | Nov 5, 2009 11:53:26 AM

"For white-collar cases in particular, 'we're back to a pre-guidelines era,'"

First, I hardly think it's that extreme. Second, the answer is to make the guideline better. The problem in white collar cases is that the GL is often-times divorced from real culpability. Three examples that are almost present in just about every white collar case: 1) "Loss" calculations often do not reflect (either by understating or overstating) a crime's seriousness. 2) a "position of trust" enhancement often applies, when its 2-levels is too much or too little. 3) The GL's "role in the offense" enhancement inadequately reflect the reality of most white-collar cases.

My point is that white collar cases are especially difficult to create a one-size-fits-all approach. And the way the GLs are currently written, it often results in range that is far afield from the reality of the crime.

Posted by: DEJ | Nov 5, 2009 11:58:38 AM

@mjs: That the state systems are different does not mean broad trends can't be extracted from them. States that had either presumptive sentencing guidelines or determinate sentencing laws share a lot in common even if they differ on the specifics. And variation, after all, is essential for statistical analysis.

Plus, Soronel is right: it's the states that matter. 90% of all sentencing takes place at the state level (although it receives at best 5% of academic attention), federal crimes are restricted to basically guns, drugs and fraud, federal jurisdiction is predominantly discretionary, the federal guidelines look nothing like their state counterparts, federal guidelines are uniquely disliked by judges, federal judges are not subject to the same political pressures as state judges, and the budgetary constraints on prosecutors and judges are not as tight at the federal level. And that's just to start. I can go on for hours like this. Research on the federal system tells us exactly one thing: what happens at the federal level. I think it is almost impossible to extrapolate from the federal world to the state, and it's at the state level that basically everything happens.

@ Soronel. My rough sense is that not too much has changed for the states, though I could be wrong about that--it's more an impression gleaned from skimming over a few reports here and there than from anything rigorous. I think it'll still be a few years, though, before we have enough multistate post-Blakely data to know what has really happened.

Posted by: John Pfaff | Nov 5, 2009 1:43:28 PM

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