Sentencing Law and Policy

US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data

I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again.  And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:

NEW Report to Congress on the Continuing Impact of United States v. Booker on Federal Sentencing

This report assesses the continuing impact on the federal sentencing system of the Supreme Court's decision in United States v. Booker.

NEW Final FY12 Quarterly Sentencing Update

This report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.

Recent related posts:

• US Sentencing Commission releases (and provides on-line here only) new Booker report
• Summary of key USSC findings in its big new Booker report
• Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change.  In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors.  The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years.  But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment.  The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice.  Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure.  Kimbrough authorized policy-based variances.  Gall instructed courts how to apply the advisory Guidelines in individual cases.  But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized.  The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences.  Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall.  Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations.  The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves.  When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime.  Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved.  The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion.  The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system. 

Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals.  I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order.  But, as of this writing, the USSC's main webpage is still "under construction." 

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing.  I remain hopeful that the USSC's website will be back in action by the time the CP report is ready.  But I suppose only time will tell.

Recent related posts:

• US Sentencing Commission releases (and provides on-line here only) new Booker report
• Summary of key USSC findings in its big new Booker report
• Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

Summary of key USSC findings in its big new Booker report

As 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.

Recent related post:

• US Sentencing Commission releases (and provides on-line here only) new Booker report

The cites to and echoes of Booker in today's SCOTUS health care ruling

In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form?   And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)."   Booker is twice cited by the plurality to support its remedy."

In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":

In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.

In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.

And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.

In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:

This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).

So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding

US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below).  Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint.  There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

Download 10-cr-10310Gurley Mem

Professor Bowman's latest potent pitch for a Booker fix

I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice.  Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN.  This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System."  Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible.  It retains virtually every feature excoriated by critics of the original sentencing guidelines.  Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.  More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never.  Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences.  I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

Fascinating comments from Justice Alito about "most academic" Supreme Court

Thanks to a link from How Appealing, I saw this press release from Columbia Law School titled "U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court." As the title hints, there is much of interest in what Justice Alito had to say at Columbia Law School’s conference on Burkean Constitutionalism.  And I found these passages from the press release especially noteworthy:

In his lunchtime speech, Alito wrested Burke’s legacy from the realm of theory. “He was not a theorist, and I am not a theorist,” Alito said, before distinguishing himself from other members of the current Supreme Court.  “I feel almost outnumbered,” he said, noting that the Court has four former professors.  “The Supreme Court these days is the most academic in the history of the country.  We’re at a tipping point where we might tip into the purely theoretical realm.”...

For Alito, the virtue of Burke is stability: If judges are bound to respect prior decisions, he said, they’re less likely to risk the unintended consequences of “ill-considered judicial innovations.”

Sticking to established rules, Alito said, is good policy for judges who make decisions under isolated conditions and with limited resources.  He noted that judicial decisions “are discrete exercises of individual judgment, so they are more prone to error or ideological manipulation."

I am inclinded to suspect that Justice Alito might be thinking particularly of Blakely and Booker when he talks about “ill-considered judicial innovations.”  I am also inclinded to wonder whether and how these comments provide a tea leaf of sorts concerning how Justice Alito is approaching all the blockbuster cases still pending on the SCOTUS docket this Term.

"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"

The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers.   Here is the abstract:

The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities.  However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact.  To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines.  We find that racial disparities are either reduced or little changed when the Guidelines are made less binding.  Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums.  Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.

A little talk about Booker remedy when debating ACA severability

I am listening to the oral arguments of this morning's health care litigation (available at this link), in which the question on tap concerns whether and how SCOTUS ought to strike down other parts of the Affordable Care Act if it strikes down the individual mandate as unconstitutional.  In two parts of that argument, the remedy adopted in Booker gets mentioned.  Not surprisingly, the Justices and the advocates seem to give different spins to what the Court did in the remedy portion of Booker and what that means for severability doctrines.

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read.  These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans.  For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced.  But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done.  As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud.  With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines.  For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size.  This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair.  Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”  In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for.  That was indeed the case with respect to the Fair Sentencing Act.  At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

Brief reflections on federal sentencing policy, practice and politics after USSC hearings

I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space.  But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics.  Let me (too briefly) explain what I mean:

1.  There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly.  (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.)  But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law.  (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)

2.  There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd.   But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing.  (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)

3.  Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates.  But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers.  For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together.  For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.

I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.

Some recent related posts:

• Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
• Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns
• "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
• New paper say there "is no need for a 'Booker fix'; Booker is the fix"
• In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
• NPR covers latest debates over post-Booker federal sentencing systems
• Two big public hearings on tap for US Sentencing Commission next week

Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns

I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system.  But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department.  Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:

We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention.  At the same time, state and local enforcement and corrections budgets are under severe strain.  Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.

Prisons are essential for public safety.  But maximizing public safety can be achieved without maximizing prison spending.  And in these budget times, maximizing public safety can only be achieved if we control prison spending.  A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.

This is all relevant to federal sentencing, because the federal prison population remains on an upward path.  Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....

One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons.  To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism.  We believe this is one example of a responsible way to control prison spending while also reducing reoffending.... 

We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing.  At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved.  The Commission’s report reached the same conclusion.

There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony.  And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.

Some recent related posts:

• Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
• "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
• New paper say there "is no need for a 'Booker fix'; Booker is the fix"
• In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
• NPR covers latest debates over post-Booker federal sentencing systems
• Two big public hearings on tap for US Sentencing Commission next week

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

Some recent related posts:

• "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
• Early reactions to the (too) quick House hearing on post-Booker sentencing
• New paper say there "is no need for a 'Booker fix'; Booker is the fix"
• In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
• NPR covers latest debates over post-Booker federal sentencing systems

Two big public hearings on tap for US Sentencing Commission next week

As reported on its website and in official notices here and here, the US Sentencing Commission has planned two full-day public hearings for next week in DC.

The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."

I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it.  I also expect the USSC will post the submitted written testimony of other witnesses before long, too.  In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.

NPR covers latest debates over post-Booker federal sentencing systems

This new piece featured as part of NPR's show Morning Edition, and given the headlined "GOP Seeks Big Changes In Federal Prison Sentences," effectively reviews some of the recent debates in Congress and elsewhere over the current state of federal sentencing.   Drawn from last year's House hearing and a recent ACS panel (in which I had the honor participating), the piece notes that a few folks are vocally complaining about how advisory guidelines are functioning.  Here is how the piece begins:

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable.  But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process.  Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

As astute readers know, the "wrench" thrown into the federal guideline system by the Supreme Court in Booker just happened to be the protections of the Fifth and Sixth Amendments of the Bill of Rights; we could return to the "old" system of mandatory guidelines if and whenever Congress and prosecutors agreed that factors within the guidelines would have to be proven up consistent with the constitutional requirements.  

Sensenbrenner failed to push forward on such a legislative response in Booker (which has been urged by members of the Supreme Court as diverse as Justices Scalia, Souter, Stevens, and Thomas) throughout 2005 and 2006 when the GOP controlled both houses of Congress and the executive branch.  That reality leads me to view much of the recent criticisms as mostly "big bad wolf" huffing and puffing with just false threats to blow down the post-Booker system.

For a more fulsome review of these issues and the broader debate, the extended ACS discussion from which some of this NPR piece is drawn is available at this link.

Some recent related posts about the House hearing and other post-Booker debates:

• Witnesses identified for House hearing on post-Booker federal sentencing
• "Should sentences reflect the will of the public?"
• "Should the USSC publish sentencing data for individual judges?"
• Early reactions to the (too) quick House hearing on post-Booker sentencing
• New paper say there "is no need for a 'Booker fix'; Booker is the fix"
• In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"

As detailed in this official notice, I have the honor of being in Washington DC this afternoon to participate in an ACS/ACLU event on federal sentencing.  Here is the set-up by the hosts:

On Thursday, January 19, 2012, at 1:30 p.m., ACS and the ACLU will host The Relevancy and Reach of the U.S. Sentencing Commission.  During the height of the War on Drugs, in 1984, the U.S. Sentencing Commission was created.  The intent behind the Commission was to provide uniformity to the sentences –- many of them drug sentences -- that were imposed upon federal criminal offenders.  However, instead of eliminating racial and other disparities as intended, the mandatory guidelines perpetuated disparities and took away judicial discretion.  Judges’ hands were tied, with many of them forced to render sentences that they felt were unfair and unjust, especially when it came to sentencing for crimes associated with crack cocaine.

In 2005, the U.S. Supreme Court deemed these federal sentencing guidelines in violation of the Sixth Amendment in U.S. v. Booker.  While the Commission could continue to advise on proper sentencing, the guidelines would be advisory. In the years that have followed, the Commission has continued to play a prominent role in sentencing, most recently generating attention for its decision this past summer to make federal crack cocaine sentencing guidelines retroactive after the enactment of the Fair Sentencing Act.  In the wake of this controversial decision, questions surround the Commission, namely, does the Commission remain valid and legitimate in purpose today?

And here is a rough sketch of what I am planning to say on the panel:

The US Sentencing Commission remains quite valid and legitimate, but it should, at this important moment in federal sentencing law and policy, shift its focus to worrying much, much more about unwarranted sentencing severity while worrying much, much less about unwarranted sentencing disparity. Indeed, evidence of sentencing disparity is always contestable and often contested, and efforts to reduce disparities through new sentencing rules often will produce unintended consequences (in part because modern prosecutorial discretion likely impacts disparities much more than judicial discretion). Moreover, and perhaps most importantly, unwarranted sentencing severity is usually the root cause of unwarranted sentencing disparity: white-collar, drug and child porn sentencings are the settings where, because the guidelines can often suggest crazy high prison terms, different judges make different judgments about whether and how much to vary below the applicable guideline range. As a practical matter, reducing unwarranted sentencing severity is probably going to be the most effective way to reduce unwarranted sentencing disparity.

New paper say there "is no need for a 'Booker fix'; Booker is the fix."

The quote in this title of this post comes from the end of the abstract of this new paper by Amy Baron-Evans and Professor Kate Stith entitled "Booker Rules."  Here is the full abstract:

For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional.

The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity.  The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court.  The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases.  The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed.  There is no need for a "Booker fix"; Booker is the fix.

"No Change in Sight for Sentencing Guidelines"

The title of this post is the headline of this recent piece by Professor (and former federal prosecutor) Wes Porter appearing in the legal newspaper The Recorder.  Here are excerpts:

The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change.  The Supreme Court, in its 2005 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality.  However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the "evolution" of its guidelines.

District judges routinely reject certain provisions of the guidelines as unhelpful.  The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker.  To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard.  And examples of routinely disregarded guideline provisions are not hard to find.

For example, the guidelines still require district judges to calculate and consult artificially enhanced punishments based upon often uncharged — and sometimes acquitted — conduct called "relevant conduct."  The guidelines still require courts to consult its recidivism (re-)classifications such as the "career offender" provision.  Here, the judge has all the details of the defendant's criminal history and resulting (already severe) sentencing range, yet the guidelines require the court to consider a more severe sentence because of its recidivism label.  The guidelines still require parties to litigate, and judges to find, whether conduct qualifies for other guideline-created labels, such as whether it is "serious," "violent" or "sophisticated."...

[Since] Booker, district judges generally have embraced the sentencing policy goals, consulted the guidelines and imposed "reasonable" sentences.  Congress fortunately has not attempted to legislate a fix to a sentencing process that is not yet broken.  The federal sentencing process has played out as intended by the Supreme Court and as well as could have been expected for the Sentencing Commission.  Yet, with respect to these unhelpful guideline provisions, district judges are required to make findings about them and consult the resulting calculation, but they then may exercise their discretion to ignore the provisions when imposing a sentence....

Many provisions in the guidelines do not provide any helpful information to the court at sentencing.  Only the resulting calculation is helpful to the court as an "anchoring" reference for its sentence....

There are many explanations for the lower sentences since Booker.  Many believe that the guidelines were skewed too high. Others argue that district judges, particularly guideline-era judges, have gained greater comfort with sentencing discretion and accounting for individual circumstances. The explanation, however, also may reflect the district judges' exercise of their discretion to disregard unhelpful provisions in the guidelines.  The sentencing commission should review these trends and remove generally disregarded provisions of the guidelines to promote continued uniformity and proportionality....

Many provisions in the guidelines involve wholly unhelpful manipulations and recategorizations of information already available to the court.  In fact, certain problematic provisions skew the "anchoring" guideline calculation and mislead the district court's sentencing decision. The Sentencing Commission should endeavor to weed these provisions out of the guidelines....

The Sentencing Commission should appreciate that only a meaningful guideline calculation assists the court when exercising its discretion, and that only a meaningful anchoring reference continues to promote uniform and proportional sentences in federal court.  The anchoring guideline calculation could have sustained meaning in the post-Booker sentencing process if the Sentencing Commission evaluated trends and trimmed the guidelines back.  Without a dramatic change, the post-Booker sentencing process will become increasingly inefficient and largely a waste of time and resources.