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November 5, 2009

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1.  As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2.  Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3.  Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4.  Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A.  Congress --- for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission --- for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D.  Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker.  These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

November 5, 2009 at 02:04 PM | Permalink


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Tracked on Nov 5, 2009 6:45:14 PM


In the prior thread on this topic MJS said, "Idiosyncratic justice is no justice at all."

Idiosyncratic justice is the only justice there is, that's what I believe. So I'm not troubled by sentencing disparities; I think we need more of that not less.

Posted by: Daniel | Nov 5, 2009 2:19:41 PM

4.A. SCOTUS, for wrongly deciding Blakely.

Posted by: Kent Scheidegger | Nov 5, 2009 3:05:39 PM

To me, a big problem with the debate over Blakely, Booker and disparity is that I don't know what "disparity" means. As Kevin Cole pointed out a while ago, what is disparate to a just deserts theorist need not be disparate to an incapacitationist. A 25-year old and a 35-year old commit the same violent crime. Is it disparate to lock them up for different lengths of time? To the retributivist, yes. To the incapacitationist? Perhaps not, given age-desistance patterns.

The Court and the USSC treat "disparity" like it is an objective term. But it isn't: it embodies a host of profoundly important normative principles. And given that the criminal code purports to embrace every possible normative sentencing goal known to man (sentences should deter, incapacitate, rehabilitate, educate, be morally just, and fight tooth decay), it seems to me that "disparity" can't really mean anything at all. Or that the Court and the USSC are focusing on only some of the goals of sentencing but not explicitly stating which ones.

The cite: Kevin Cole, The Empty Idea of Sentencing Disparity, 91 Nw U L Rev 1336 (1997).

Posted by: John Pfaff | Nov 5, 2009 3:16:55 PM

4.A. Congress, for writing the appallingly bad Sentencing Reform Act in the first place.

Posted by: Marc Shepherd | Nov 5, 2009 4:12:39 PM

John Pfaff: Let me put a face on disparity with a real life example. I was a federal parole hearing examiner. In one docket of hearings at Petersburg Va., I had back to back hearings with individuals sentenced for Bank Robbery. This was the first felony offense for both men who were in their twenties. Prisoner A, sentenced in the SD/NY (Manhattan), received a 3 year sentence while prisoner B, sentenced in the ED/NC, received a sentence of 20 years. Explain to the prisoner from North Carolina that you do not know what disparity means.

Posted by: mjs | Nov 5, 2009 4:15:04 PM

@mjs: Your example actually proves my point.
Here's how this outcome need not be seen
as disparate. Maybe The people of NY are
less punitive and the two sentencing judges
took local values into account (a controversial
position to be sure, but not necessarily a
wrong one--in fact, I think they should do so,
since I am troubled by state/federal differences.
You may disagree, but that gets to my point
about how normative all this is). In the end, these
results look disparate to you because of a
specific set of normative values you hold.

I am not saying that there is no such thing as
disparity, only that it has no objective meaning.
So perhaps under one set of normative goals
what you describe is disparate, but I can easily
find another set where it is not.

Posted by: John Pfaff | Nov 5, 2009 5:13:25 PM

If a disparity in crime victimization rates worsens from the effects of irresponsible appellate decisions, the Justices of the Supreme Court should all be impeached. Those who voted against ending the guidelines failed to restrain their colleagues, and must be removed as well. No lawyer should be permitted to sit on the Supreme Court if one ever wants to really control crime.

Posted by: Supremacy Claus | Nov 5, 2009 9:41:35 PM

One wonders why the DOJ has no victimization survey data after 2007. One wonders if it covering up a significant increase in victimization caused by the Supreme Court.

Posted by: Supremacy Claus | Nov 5, 2009 10:47:22 PM


As a parole hearing officer how much of the record were you privy to? Was the bank robbery in fact the only salient point or was there perhaps a reason for the difference other than where the crimes were committed

Posted by: Soronel Haetir | Nov 5, 2009 11:48:34 PM

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