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April 23, 2010

"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"

The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.  Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit.  The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them.  Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

April 23, 2010 at 09:18 AM | Permalink


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The article tells only a small part of the story.

"56.8 percent of sentences were inside the guidelines"

This figure excludes sentences that received a Guideline-approved departure. A sentence that results from a Guideline-approved departure is consistent with the Guidelines and therefore has nothing to do with Booker. If you include sentences where the sentence resulted from a departure (and Booker had no contribution at all), it's at 80.8%. And even this figure is misleading because many post-Booker sentences have been classified as "variances" even though they could and would have been "departures" pre-Booker.

"27.8 percent in the District of Arizona"

That's because 59.7% of AZ sentences receive a Guideline and Congressional approved variance, which the govt. must approve (54.9% Fast-Track and 4.8% Substantial assistance). This, again, has nothing to do with Booker.

"District of Vermont's 30.8"

The cited figure does not count 25.6% of Vermont's sentences that were substantial assistance departures. Again, Booker did not cause these sentences (or the 16.4% of Guideline departure sentences).

Finally, the figure cited by the article excludes govt-sponsored departures or variances. The concern about Booker and an advisory Guideline system is the exercise of run-away discretion. When a departure or variance is sponsored by the government, such concerns are minimized. In those situation, the only reason a departure or variance was given was because all the government allowed it (and all parties thought it was appropriate). If you're going to analyze the impact of Booker, you must recognize how government approved departures impacts the data.

Posted by: DEJ | Apr 23, 2010 1:15:29 PM

I'll re-post what I cited in a previous post since it's more relevant here:

According to the FY 09 data, Table N: 15.9% of defendants were sentenced below the GL range without a govt-sponsored departure.

According to the FY 03 (the last full FY before Blakely), Table 26A: 7.5% of defendants received non-govt-sponsored downward departures.

Let's assume that Booker never happened and 7.5% of defendants continued to receive non-govt-sponsored downward departures. (I make this assumption because many post-Booker variances have been classified as "variances" even though they could and would have been "departures" pre-Booker. In order to account for the under-utilized nature of "departure" clasification post-Booker, I assume it's the same as FY 03 departure rates). That means that Booker was the sole cause for 8.4% of downward variances.

Posted by: DEJ | Apr 23, 2010 1:21:55 PM

And I thought that the rate was around 20-30%, rather then 55-65%. This is a better new's to me, as judges have more discretion over thing's.

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