Sentencing Law and Policy

Yet another analysis of Booker's real import

Now available on SSRN at this link is another piece of scholarship trying to give coherent shape and meaning to the Supreme Court's work in Booker and its progeny.  This piece is titled "Re-Conceptualizing Booker: How to Stop Legislatures from Circumventing the Right to Jury Trial," and here is the abstract:

This essay offers a new, comprehensive account of the Supreme Court's recent Sixth Amendment sentencing doctrine and provides solutions to a number of well-recognized doctrinal puzzles. Existing theories lack a strong foothold in the Sixth Amendment's right to jury trial, fail to answer concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and make no effort to explain how the Sixth Amendment might justify the Supreme Court's post-Booker decisions regulating federal sentencing practice.

The key to answering these dilemmas is to recognize how the Court's Sixth Amendment rule helps preserve the centrality of jury verdicts.  As employed by the Court, the Blakely rule removes an incentive for legislatures to shift factfinding responsibilities away from juries and toward judges.  This jury circumvention approach both respects the American legal system's dual traditions of jury trial and judicial sentencing and explains why appellate sentencing review after Booker should not raise constitutional problems.  However, this novel approach also highlights the possibility that — despite the Blakely rule — Congress and the courts might implicitly collude so as to empower judges at juries' expense.  This last possibility is what drives the Court's recent, otherwise inscrutable decisions in Rita, Gall, and Kimbrough.

Judge Kopf's "Top Ten" take on SCOTUS sentencing work

As previously detailed here, last week week the Ohio State Journal of Criminal Law "officially launched" a new scholarly project: an on-line companion website publishing commentaries from practitioners on cutting-edge criminal law.  The first publication includes original commentaries by four terrific district judges discussing federal sentencing after last month's Gall and Kimbrough rulings. 

Though all four judicious articles in the new OSJCL Amici: Views from the Field merit attention, I have to give a special shout-out to the work of Judge Richard Kopf (in part because he has already contributed indirectly to my weekend plans).  Judge Kopf's piece provides a "Top Ten" view of the sentencing world as a result of the Supreme Court's modern sentencing jurisprudence.  And though the list should be read in full, I cannot help but showcase its start and finish here:

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply....

2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

SCOTUS rules for the defendants in Gall and Kimbrough!!

Providing a great Hanukkah present for me and anyone else tired of waiting, today the Supreme Court issued its decision in Gall and Kimbrough. SCOTUSblog here provides the basics:

The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory.  Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form.  Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330)....

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range.  Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence.

Once I have a chance to read and reflect on the opinions in these cases, I will provide A LOT more commentary.

UPDATE: Thanks to SCOTUSblog, the opinion in Kimbrough (06-6330) is here, and here are the voting blocks:

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions.

The opinion in Gall (06-7949) is here, and it has similar voting blocks:

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., and SOUTER, J., filed concurring opinions. THOMAS, J., and ALITO, J., filed dissenting opinions.

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.

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

• A big SCOTUS sentencing Term in the works?
• Serious SCOTUS sentencing fun soon to begin
• Baze lethal injection case index
• Gall reasonableness case index
• Kimbrough reasonableness case index

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

Editorial supporting more sentencing discretion for federal judges

Perhaps sensing that it is possible (but I think unlikely) that SCOTUS decides Claiborne and Rita today, the Des Moines Register has this new editorial entitled "Let federal judges use judgment in sentencing."  The editorial complains about the Eighth Circuit's reversal last week of a below-guideline sentence in US v. Pepper (discussed here).  Here is the heart of the editorial:

This [Pepper] case illustrates the problem with federal sentencing rules.  Besides shackling judges from tailoring sentences to individual offenders, they tend to produce vastly longer prison sentences.  And, by relying heavily on recommendations from prosecutors, the rules give more discretion to U.S. attorneys than judges.

The Supreme Court, in striking down the sentencing rules in 2005, said mandatory sentencing rules violate a defendant's Sixth Amendment right to trial by jury because the sentence formula uses information gathered after the trial, not on facts presented to the jury.  Since then, however, federal appeals courts — including the 8th Circuit, which has jurisdiction over Iowa — have still enforced the old guidelines as if they were mandatory.

More great stuff from the FSG conference

As I had expected, the morning plenary panels on the last day of National Seminar on the Federal Sentencing Guidelines in Salt Lake City were stellar.  Here are two particular highlights:

1.  As emphasized by all the district judges, the reality of post-Booker sentencing varies dramatically for circuit to circuit (although such circuit variations were common before Booker, too).  Providing a dramatic capper on this reality, judge Gerald Lee of theEastern District of Virginia said simply from the audience "The guidelines are mandatory in the Fourth Circuit."

2.  Deputy SG Michael Dreeben predicts that "Claiborne and Rita will be close votes and will be decided in the second week of June."  I think both predictions are very sound (but certainly not certain).

More weekend Sixth Amendment reading

For anyone seeking a weekend reading companion to "Apprendi's Domain" (discussed here), there is another newly published piece on sentencing after the Supreme Court's modern Sixth Amendment revolution.  I fear this piece is only available via paid on-line services, but here's the cite and the introduction's first paragraph:

Graham C. Mullen & J.P. Davis, Mandatory Guidelines: The Oxymoronic State of Sentencing After United States v. Booker, 41 U. Rich. L. Rev. 625 (2007):

"Like a vampire buried without a stake, mandatory sentencing guidelines have been resurrected to stalk our jurisprudence once more.  When the Supreme Court announced the end of the mandatory Sentencing Guidelines regime in United States v. Booker, many expected to see a major paradigm shift in the way sentences were handed down. A year and half has passed since Booker, but little has changed.  Judges are still enhancing sentences based on facts neither found by a jury nor admitted by the defendant, and nearly two-thirds of all sentences are within the prescribed Guidelines range, a difference of less than ten percent from pre-Booker levels. While the principal results of sentencing remain the same, the logistics of sentencing have changed. Sentencing has become more complicated than ever before and consumes more judicial time and resources.  The ultimate result is that the constitutional issues behind Booker and its parent case Apprendi v. New Jersey have been glossed over while the federal courts grow more backlogged in the process."

Noticing an upward variance pattern

This article at Legal Times, entitled "Hard Hits: Departures From Sentencing Guidelines Seem Immune From Scrutiny When National Security Invoked," spotlights that Booker has proved to be more of a curse than a blessing for certain sets of defendants.  Here is how the piece begins:

Despite new freedom in sentencing criminals, federal district courts are mostly staying within the U.S. Sentencing Guidelines — with one significant exception.  That exception is national security.

For defendants in these cases, the news is grim: Upward departures based on national-security concerns have not only been upheld in every case but have also resulted in sentences that exceed the guidelines by as much as 333 percent.  And these extremely high sentences often have been imposed and affirmed without compelling reasons for such strong punishments.  This trend is troubling, and it deserves closer scrutiny.

Should departures depart after Booker?

I am very proud to recommend a terrific new Note on SSRN authored by an OSU student, Lee Heckman.  The piece, available here [new fixed link], is entitled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."  Here is the abstract:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given by district courts in sentencing and appellate courts reviewing those sentences.  But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  The Booker opinion should be seen not only as creating a system of advisory Guidelines, but also as an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis--and in the case of departures based on discouraged factors, were only based on the extraordinariness of the defendant's situation--many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded.  Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete.  Departure obsolescence, however, should be recognized by all courts and should be replaced with a jurisprudence that reduces sentences based on Section 3553(a)'s purposes of sentencing.

As Larry Solum might say, "Download it while its hot!"

Archive of AFDA webcast

As noted here, earlier this week Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), enabled me to again utilize the AFDA's cool Audio Webcast System for a lengthy discussion of various state-of-post-Booker-sentencing realities.  Greg has now kindly created this audio file of the webcast for anyone who would still like to hear what I had to say.

As noted before, Greg provides a complimentary password registration system for members of the federal court community (judges, law clerks, federal public defenders, probation officers), and members of academia, at this sign-up page.  And everyone should want to sign up for the next AFDA webcast, which is scheduled for April 23 with Alan Dorhoffer, senior staff attorney at the Sentencing Commission, discussing guideline application topics.

Another AFDA webcast on Booker developments

I have been working again with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), to again utilize the AFDA's cool Audio Webcast System.  As detailed here, my second audio webcast is scheduled for this Tuesday (March 27) at 12noon EST. 

The basic plan is to provide an "informal, 90-minute discussion covering key developments in federal sentencing."  I expect to focus on what we might take away from the Claiborne and Rita arguments and other current legal and political realities surrounding federal sentencing these days.

Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.  I am grateful to Greg and the AFDA for putting this event together, and I hope to continue participating in these sorts of user-friendly webcasts on a regular basis if it helps folks trying to sort out the post-Booker world.

The latest USSC Booker data

I am very pleased to see a new quarterly update with the latest, greatest post-Booker sentencing data available at this link over at the US Sentencing Commission's Booker webpage.  Here's how the USSC describes this data:

Quarterly Sentencing Update (Published March 7, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on December 31, 2006 and received, coded, and edited by the Commission by February 27, 2007.

I am about to head into a faculty meeting, and this data report makes for great multi-tasking materials.  I'll update this post later if any really suprising numbers jump out of this new data snapshot.

UPDATE:  Based on Figure C in this report, it appears that average sentences after Booker continue to rise, and may have experienced a (statistically significat?) up-tick from October 1 to December 31 2006.  Also, the circuit-by-circuit variations in prosecutor-inititated and judge-initiated below-range sentences are quite intriguing.

More mile-high Booker insights

Last year the Denver University Law Review published Judge Michael McConnell's great insights on "The Booker Mess" (discussed here).   Now I have learned that another insightful Booker piece is in the works at the DULR in the form of a forthcoming law review comment from student Jeff Hurd, entitled "Federal Sentencing and the Uncertain Future of Reasonableness Review."  Jeff kindly arrange for advance posting in this space, and the piece can be downloaded below.  The comment laments the circuit courts' guideline-centric approach to reasonableness review since Booker (which is termed "Booker minimalism"), and provide another nice and valuable read as folks rev up for next week's oral arguments in Claiborne and Rita.

Download hurd_du_law_vol.84.3.pdf

When will there be more official post-Booker data?

As I have mentioned before, the US Sentencing Commission initially did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts.  But, after its March 2006 report on the first year after Booker, real-time sentencing data from the USSC has been in short supply.  And, even more disappointingly, the Commission has not publicly explored some of the most dynamic post-Booker data issues such as defendants' fates after remands (cf. Judge McConnell's insights in Medley) or post-Booker sentencing outcomes for white-collar or other particular types of offenders. 

The absence of new and up-to-date sentencing data from the USSC is especially troubling given that the Supreme Court is exploring post-Booker sentencing realities and reasonableness review in Claiborne and Rita.  In addition, transitions in Congress could and should facilitate new conversations about post-Booker legislative reforms, and the USSC ought to be prompting such conversations through sophisticated data analysis about post-Booker sentencing realities.

I continue to want to hopeful and optimistic about the USSC's ability to encourage sensible, data-focus post-Booker reforms.  But, as the Booker data silence grows more deafening, the USSC's post-Booker work is looking even more uninspiring.

Some recent (and older) related posts:

• Will the USSC have more data for Claiborne and Rita?
• Please feed the data junkies, USSC
• What's the USSC doing these days?
• Key questions for USSC: Now what...?
• Encouraging a critical race examination of post-Booker developments
• A loud deafening silence from the Sentencing Commission
• Friday afternoon ranting about the post-Booker world
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• What is the USSC doing on the Booker front now?

AFDA federal sentencing audio webcast today

Self-promoting reminder: As noted here, my first AFDA audio webcast is scheduled for this morning (Feb. 6) at 12noon EST.  The plan for this webcast is to provide an "informal, 60-minute discussion covering key developments in federal sentencing."  The AFDA only charges a nominal fee for participating is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.

PM UPDATE: Though there was a mid-session technical glitch, I enjoyed the opportunity to use the AFDA's audio webcast to prattle on about Booker, Cunningham and Claiborne and Rita through a different medium.  If any readers listened in, I hope they wll provide feedback in the comments to this post.  Thanks.

A belated Booker birthday wish

I forgot to note yesterday that Booker is now two years old; the decision converting the federal guidelines from mandates to advice was handed down the morning of January 12, 2005.  Happy (belated) birthday Booker!

As Booker begins the terrible twos, I am not sure what I find most surprising: (1) that the ruling has changed so little about the operation of the federal sentencing system; (2) that Congress passed fewer ugly federal sentencing laws in the two years after Booker than it did in the two years before Booker; or (3) that we still do not have answers to a lot of the issues and questions I discussed on this blog in the first 24 hours after the ruling.

Another notable Note on the Sixth Amendment's reach

In this recent post, I spotlighted a new Columbia Law Review Note exploring how Blakely might affect orders of restitution and forfeiture.  Today it's time to note a notable Note in the Yale Law Journal.  This Note is entitled "Sentencing Organizations After Booker" and is available at this link. Here is the abstract:

In United States v. Booker, the Supreme Court held that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines.  The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury.  Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear.  Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.

What the latest USSC data reveal

Though I have not yet assessed all the particulars, the latest USSC sentencing data (basics here) suggest that the circuits' anti-defendant tilt in their approach to reasonableness review is significantly impacting the rate at which district judges go below the guidelines.  (Some recent evidence of the circuits' anti-defendant tilt appears here and here, older evidence is here.)

Here's what I noticed from the last three data reports from the USSC's Booker page.  District judges were going below the guidelines (either via departures or variances) in 12.4% of all cases through June 1 in Fiscal Year 2006.  The data through June 30, however, showed judges going below the guidelines in only 12.1% of all cases in FY 2006.  The latest stats through September 30 now show that judges went below the guidelines in only 11.9% of all cases for all of FY 2006. 

Because these number are cumulative, this accounting does not reflect the particularly low variance rate for the last two quarters of FY 2006.  My rough guess is that judges have been downward varying in less than 1 of every 10 cases over the last two quarters of FY 2006.  Also Figure I in this latest data run shows that some average drug sentences have gone way up the last two quarters (especially for crack and meth); Figures A and B suggest this may be because district judges now varying less in these cases.

Latest Booker stats from the USSC

I am pleased to discover that, over at the USSC's Booker page, one can now find the latest "Quarterly Sentencing Update."  Available at this link, this data update provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006.  The numbers are prepared using data sentenced by close-of-business on September 30, 2006 and received, coded, and edited by the Commission by November 27, 2006."

The timing is great for me, because I now have to go into a faculty meeting in which a USSC data report will seem interesting.  Late tonight I hope to provide some commentary on what this latest data might show, but for now I'll just link below to some of my prior data commentaries:

Recent posts on past Booker data and related issues:

• Please feed the data junkies, USSC
• Latest USSC data: "traditional" departures making a comeback
• A new (and new type of) data report from the USSC
• Key questions for USSC: Now what...?

Please feed the data junkies, USSC

For over a year following Booker, the US Sentencing Commission did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts.  (During that time, it also did a great job catching up on pre-Booker data responsibilities).  But, over the last six months, real-time data from the USSC has been in short supply; the last official post-Booker district court sentencing data only captures sentencings through June 30, 2006. 

Moreover, and more disappointingly, the Commission has not publicly discussed some of the more dynamic post-Booker data issues such as defendants' fates after post-Booker remands or post-Booker sentencing outcomes for white-collar offenders.  And even though the Supreme Court has now taken up reasonableness review in Claiborne and Rita, the USSC has not produced any data at all about post-Booker appeal rates or outcomes.

I am hopeful (and fairly optimistic) that we will soon see a new batch post-Booker district court sentencing data.  I am also wishing (and far less optimistic) that some new and different kinds of post-Booker data will emerge from the USSC before the year is out.

The big other branch questions after the election

In response to prior posts here and here, commentators have suggested that Democrats now in power in Congress are unlikely to push significant sentencing reform that could subject them to attacks for being "soft on crime."  Though I am hopeful that split federal government might lead to a more balanced sentencing policy discussion, I think the really big questions now are how the sentencing work of other branches are impacted by the changes in Congress:

1.  Will DOJ continue to push for topless guidelines?  Though I was never sure the Justice Department really wanted a topless guidelines system, its express advocacy for this sort of Booker fix has influenced both the politics and practices of the post-Booker world.  I am eager to see if, when and how DOJ might change its Booker fix tune in light of the new balance of power in Congress.

2.  Will the Sentencing Commission and federal judges be bolder?  Over the last two years, I have repeatedly heard the USSC and federal judges express concerns about possible congressional backlash to any pro-defendant changes in the federal sentencing system.  Sentencing Commissioners have suggested Congress would might react poorly if the USSC made a bold move on the crack/powder guidelines.  The high within-guideline sentencing rate after Booker reflects, in part, district judges' concerns about Congress's response if judges too frequently varied from the guidelines.  Might these inter-branch dynamics change significantly now?

A prosecutorial perspective on Booker

I was recently sent this link to a fascinating Booker resource: the September 2006 issue of the US Attorneys' Bulletin, which has a series of articles on Booker written from a prosecutorial perspective.  Here are the articles you will find:

• Booker 101 by Ed Hagen
• Responding to the Fast-Track Disparity Argument by Paul W. Hahn
• Preparing for a Sentencing Hearing by Lori A. Hendrickson
• The Presumption of Reasonableness for Within-Guidelines Sentences by Elizabeth A. Olson
• Guideline "Departures" at Sentencing by Robert Don Gifford
• Off The Beaten Path: A Case Study of Unusual Post-Booker Litigation In United States v. Harper by Traci L. Kenner

Is a Booker reasonableness cert grant on the horizon?

Among other fun matters to debate after the SCOTUS Cunningham oral argument this week (debated here and here) is whether the Court might now be more (or less) likely to grant cert soon on a Booker issue.  As detailed in posts linked below, I believe the Court needs to take up a federal sentencing case ASAP to provide lower courts with clearer and more uniform guidance about the rules and procedures for post-Booker federal sentencing.

A helpful reader noticed that two paid cases from the Seventh Circuit, Boscarino and Lister, are both listed for the Court's October 27 conference (see SCOTUS schedule here and here, case background here and here).  These cases, and surely lots of pauper petitions also before the Court, likely focus on the question of whether it is proper for a guideline sentence to be deemed presumptively reasonable on appeal.

Some related posts:

• When and how should SCOTUS take up reasonableness review?
• Taking stock of post-Booker circuit splits
• Time to take some more Blakely and Booker cases....
• Roberts, the cert pool, and sentencing jurisprudence
• Problems with the SCOTUS docket
• The central flaw in reasonableness review
• Crack reasonableness review should be as easy as 1, 2, 3

Seeking cert-worthiness: good post-Booker SCOTUS vehicles?

As noted here, the Supreme Court did not grant cert on any major criminal cases today. But, as discussed here, the Cunningham and Burton cases already scheduled for fall argument satisfy my ache for post-Blakely issues on the SCOTUS docket.  The big brewing question, as I have previously discussed here and here, concerns when and how the Supreme Court will take up a post-Booker federal sentencing case. 

Late last week I received a copy of a cert petition filed in US v. Thurston, a case coming from the First Circuit (discussed here) where the panel ruled that a large downward variance was unreasonable (despite being supported by two district court rulings), and then strangely declared that a sentence of at least 36 months was likely needed to survive reasonableness review.  I view Thurston as one of perhaps many suitable cases that the Supreme Court might use to provide much-needed clarity about post-Booker sentencing procedures and reasonableness review.  Interested readers can download the Thurston petition here:

Download thurston_cert_petition.pdf

A few recent related posts:

• When and how should SCOTUS take up reasonableness review?
• Taking stock of post-Booker circuit splits
• SCOTUS preview season in high gear
• Time to take some more Blakely and Booker cases....
• A criminal start to OT '06 for SCOTUS
• Joint advice for SCOTUS on Cunningham
• Ideas for starting a SCOTUS fantasy league?

What's next on crack sentencing after Gunter?

I have received calls from reporters following up the Third Circuit's Gunter ruling (basics here, commentary here and here) asking about the decision's broader significant for crack sentencing in the federal system.  Because the Gunter decision is so nuanced, as discussed here, a lot depends on how others react to it.  (For more background and one thoughtful reaction, check out this long post on Gunter from the Third Circuit Blog.)

Though I though the government might seek en banc in Gunter, another brewing Third Circuit case on crack sentencing might also lead it to hold its powder for now.  Most important to these broader stories, at least in the short term, may be whether and how other circuits react to Gunter.  Long-term, crack sentencing may depend a lot on when and how the Supreme Court and the US Sentencing Commission (which has a public meeting today) starts dealing with broader Booker issues.

A few related crack sentencing posts:

• The biases in crack sentencing
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• A Senate bill to reduce crack/powder disparity
• What is the Sentencing Commission fiddling while the crack guidelines burn?

"Chaos in Sentencing"

In this interesting column entitled "Chaos in Sentencing" for the Washington Post, Andrew Cohen writes about "two vital court rulings were issued in August highlighting the extent to which our federal sentencing rules and policies are broken."  Here are a few highlights:

Last month, the irrepressible U.S. District Court Judge William G. Young in Boston dropped upon an unsuspecting nation a 125-page ruling -- a mini-treatise, really -- on what is currently wrong with federal sentencing law, why this is so, and what judges and elected officials can and should do about it.  Then, a few days later, a divided 8th U.S. Circuit Court of Appeals [typo alert: should be 6th Circuit] overturned a capital sentence for a fellow name Jason Getsy after concluding that his punishment from the Ohio courts was "arbitrary" and unfair and thus a violation of the Eighth Amendment's prohibition against "cruel and unusual" punishment.

Taken together, the two rulings represent the sorry state of the art in an area of the law that the United States Supreme Court tried to revamp last year in United States v. Booker when it held unconstitutional the mandatory nature of the Federal Sentencing Guidelines.  Both orders focus primarily upon plea bargains and their corrosive impact upon fairness in federal sentences.  Both orders take to task the existing sentencing regime, such that it is. Both remind us of the constitutional need for a nexus between crime and punishment, verdict and judgment.  Both make compelling cases for how and why Congress and the Supreme Court have utterly failed to fix sentencing problems that have been apparent and growing worse for years.

I am not sold on the link between Booker and the Sixth Circuit's habeas work in Getsy.  But I do very much like Cohen's promotion of Judge Young's terrific Kandirakis opinion (basics here), as well as the overall spirit of Cohen's kvetching about the modern state of sentencing.  Of course, as detailed in some posts below, there are plenty of suggested solutions.

Some related posts:

• Joint advice for SCOTUS on Cunningham
• Latest FSR issue develops model federal guidelines
• Will the fall bring any Booker fix action?
• YLJ Pocket Part review of appellate review after Booker
• Constitution Project urges post-Booker reforms
• Another extraordinary magnum opus from Judge Young
• Extraordinary paper on post-Booker sentencing

Extraordinary paper on post-Booker sentencing

Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders, has produced an extraordinary memorandum entitled "The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker."  This document, which can be downloaded below, is filled with 70+ pages of insights worth quoting.  Here is just one of many passages worth highlighting: 

Defense counsel must help to ensure that judges retain and exercise their sentencing power by providing arguments to support reasoned decisions that will be upheld on appeal (or not appealed at all), that Congress can respect, and that the public can understand. There are powerful arguments to be preserved below and raised in petitions for certiorari that post-Booker sentencing violates the sentencing law under basic principles of statutory construction, the Sixth Amendment right to jury trial, the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to confront and cross-examine adverse witnesses. But, as we have seen, legal arguments are not enough.

Even in circuits that have rejected presumptive guidelines, the guidelines provide a comfortable numerical anchor, and many judges have little knowledge of the guidelines' history and development other than what they are being told by advocates of the status quo....  Thus, regardless of what circuit you are in or what stage of the litigation, it is necessary to demonstrate as a factual matter that the guidelines do not comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far superior job.

Download struggle_for_constitutional_sentencing_after_booker.rev.8.16.06.doc

Taking stock of post-Booker circuit splits

In this recent post, where I pondered when and how the Supreme Court will take up a case addressing post-Booker reasonableness review, I mentioned that the circuits are split on a various aspects of federal sentencing after Booker.  Here I want to briefly chronicle major splits and ask for reader help in identifying any I have overlooked.

1.  The presumption of reasonableness:  The circuits are nearly evenly split on whether a within-guideline sentence should be afforded a presumption of reasonableness on appeal.  But, since nearly every within-guideline sentence gets affirmed with or without the presumption, this split seems more a matter of style than substance.

2.  The persi