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February 1, 2013

Summary of key USSC findings in its big new Booker report

6141708385_8dedf68f37As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link.  Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.

Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter.  Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8]Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial.  Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings.  For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities.  (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)

All these key findings should and likely will engender lots of discussion and debate in the weeks ahead.  For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention).   As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point.  I have a feeling, though, that others may have distinct views.

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Comments

Doug, I think the major interesting findings from the Exec Summary (Part A) are: (1) the Commission pointing out the increasing rate of non-government below FSG sentences (there has to be a more succinct way to describe such sentences) in child pornography and fraud offenses, and (2) that the Commission somewhat contradicts itself by repeatedly stating that it looks to actual sentencing practice as a feedback/error-correcting mechanism, only to later request Congress to provide a heightened standard of appellate review that would greatly diminish the effectiveness of the feedback. In other words, the Commission appears to find feedback helpful, which presumably would be the case in child pornography and fraud sentences given the increasing rate at which judges are NOT following those guidelines, but then later appears to find such "disregard" of those guidelines troublesome, and so seeks protection from Congress. I would have thought that where a few offenses routinely are being sentenced below the advisory range, the Commission would find that helpful and adjust those guidelines downward (as it has with drugs trafficking offenses). Yet, when it asks Congress for statutory protection such that the guidelines should be presumed reasonable, and heightened scrutiny should be applied to those below FSG sentences, the Commission appears to say just the opposite: i.e., we do not like below FSG variances.

Posted by: Mark H. Allenbaugh | Feb 2, 2013 12:09:15 PM

Or in english. A normal person would say that like most politicians they are talking out of BOTH sides of thier mouth!

Posted by: rodsmith | Feb 2, 2013 2:51:32 PM

My big concern is is the refusal of the USSC and congress to apply any and or all new amendment retroactive. Also of congress refusal of sponsoring either of these money saving amendments Hr 1475,the Barber Amendment could save 1.2 trillion alone each year. Who knows what they both could save. Or anything pertaining this very unpopular urgent matter.Now due to lack of action on anyone's part in the federal government other then buying and building more prison.They hold these human beings in prison on very long mandatory sentences.Most in solitary confinement many very longs years and then just release then with little to no rehab or help after getting out. Now there are studies proving most leave with PTSD and many other mental heath issue. This is turning into a public safty issue now. Our prison system is a very violent place. And inmate are entering at very young ages. Living in this very violents and prejustice prison system for 5 10 20 years to life. And becoming adults only knowing this violent, scary, abusive and inhumane place while there brains are still devoloping and becoming adults. Also the family members that do stick by their loved ones are treated with the same disrepect as the inmates. When the gaurds are the one's bring in mostof the drugs and contraband and doing disrespecting of all. There is total disregaurd for keeping inmate close to home and family's. The public just turnes a blind eye to our broken justice system and is scared of law enforcement. Because anyone could end up in the system these days with all the laws were have now. Washington refuses to admit our government is out of control our Justice system is broken and they have made mistake. But the USSC has admitted it would just be costly to fix and just to much work.And that would cause back logs of cases to be redone. It's all about money not right and wrong or human being.

Posted by: Tamara Diane Sanford | Feb 5, 2013 4:01:34 PM

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