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November 28, 2011

Some notable responses to recent DOJ post-Booker disparity complaints

Regular readers with a special interest in federal sentencing may recall this posting from a few weeks ago noting a public speech by Assistant Attorney General Lanny Breuer in which he lamented increasing federal sentencing disparity and asserted that "many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in."  I have gotten a sense that this speech has generated some extra amounts of notable buzz in the federal sentencing world, and it has also now also generated some notable responses.

One such response comes from Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), via this commentary piece at the website Main Justice.  The piece carries the headline "It's Not the Judges," and here are the four numbers points that appear in this piece:

  1. Prosecutors share responsibility for different guideline adherence rates among districts
  2. Different federal districts are just that: different
  3. Flawed guidelines, not flawed judges, drive variance rates
  4. Sentencing rules drive racial disparity

Another response comes via a letter put together by a set of federal public defenders which can be downloaded below and starts this way:

As Federal Public Defenders, we read with interest the remarks you made before the American Lawyer/National Law Journal Summit in Washington, D.C. on November 15, 2011. We were heartened to see that you believe, as we do, that the significant prison population in both federal and state facilities is a tremendously important issue for all legal practitioners, whether or not they practice criminal law. But we read with some concern your statements regarding sentencing disparities between federal districts, particularly the three districts in which we serve....

We write because, as experienced practitioners in the districts you mention, we disagree that the disparities you identify have much at all to do with the sentencing judges involved.  Instead, we believe that these disparities have far more to do with the types of cases that arise in each district, and the prosecution policies that local federal prosecutors have chosen to address these cases.

Download Letter to Lanny Breuer from defenders

November 28, 2011 at 06:33 PM | Permalink


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Thank you for these references.

Posted by: beth | Nov 28, 2011 10:42:45 PM

My 2 cents:

1. It will ever be thus.

2. Mr. Breuer might want to remove the plank from his own eye before he criticizes motes in judges' eyes. As so many have pointed out before, prosecutors wield an enormous amount of control over sentencing issues simply by making the charging decisions they do. That's not to say that judges aren't important, but along with the underlying facts of a case and the defendant's personal history, the prosecutor plays a significant role in determining the sentence imposed.

3. People--defense attorneys and prosecutors--who want "consistency" in sentencing should be careful what they wish for, and in this, I detect a bit of disingenuousness in Mr. Breuer's concerns. I doubt he's so much concerned about inconsistent sentences as he that some defendants might get lower sentences that he believes they should. I was always a bit bemused at defense attorneys' lamentations about mandatory sentencing guidelines, because some defendants probably benefited from those guidelines.

If I had my way, there would be three major changes to sentencing, regardless of what happens to the guidelines: first, judges would start accepting more binding plea agreements; second, juries would start playing more of a role in sentencing, even if it is only advisory; and third, we would do away with mandatory minimums altogether. This would do nothing about inconsistency, but it would result in a more dynamic process.

Posted by: C.E. | Nov 29, 2011 12:08:23 AM

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