Sentencing Law and Policy

Departure patterns as a guide to whether guidelines are balanced

This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

Alabama legislature approves voluntary guidelines

As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons."  Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes."   I found this passage in the article especially interesting:

The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area.  But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed.  "Every theft case is not the same.  Every murder case is not the same," Black said.

Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).

Alabama sentencing reform moving forward

As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons."  A basic list of the reforms in these bills is available here.  The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.

One bill provides for the adoption of voluntary sentencing guidelines.  Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:

In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period.  The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).

Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward.  A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.

Notable new paper on voluntary guidelines

Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states).  Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines."  Here is the abstract:

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.

In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation.  For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous.  Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.

Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums.  In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.

Problems in Indiana with advisory fix

This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system.  In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer."  And:

The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said.  "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.

The article also quotes lawyer Michael Ausbrook, of INCourts fame.  The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'"  But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."

I wonder how Virginia would assess Martha Stewart's risk

Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."

Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures.  My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha). 

Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern).  Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.

Topical highlights from Day 2 of the USSC hearings

Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings.  Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.

1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data.  But a number of Commissioners astutely asked about how the data ought to be parsed.  Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons).  This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead.  Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review.  Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.

3.  The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry.  More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.

Taking stock of advisory guideline systems

With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order.  As detailed in this post, the  Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system.  Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.

In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here).  Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:

This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).

Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.