Tuesday, September 14, 2010
"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:
The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007). In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models. Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.
We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels. Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses. We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.
Wednesday, July 28, 2010
"A Brief and Modest Proposal" ... an original essay from US District Judge Richard Kopf
I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska. Here is the Judge's wind-up and pitch:
I read Professors Masur's article entitled "Booker Reconsidered" and your post about his article [available here]. After that reading, a thought occurred to me that has been percolating in my muddled mind for some time. Hence, the following "Brief and Modest Proposal." Feel free to post if you like. Take care.
A Brief and Modest Proposal
Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines. I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.
For much of their history, compliance with the Guidelines was very high. So long as the Guidelines were essentially binding in most cases and aggregate compliance rates remained elevated, one could make a reasoned argument that providing sentencing statistics on individual judges was unnecessary and perhaps unfair. But the Supreme Court has changed all that by significantly increasing the discretion of federal judges when it comes to sentencing.
Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared. This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice. See, for example, the New York Times editorial entitled "Rethinking Criminal Sentences" published on July 28, 2010. ("As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will 'breed disrespect for the federal courts,' damaging their reputation and the deterrent effect of punishment.").
By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences. Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world. In short, it is time for federal sentencing judges like me to pay the piper.
Richard G. Kopf, United States District Judge
Monday, July 19, 2010
"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered." There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):
The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects. There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing. Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form. And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.
I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis. But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.
July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack
Sunday, July 18, 2010
Effective press coverage of recent DOJ letter to the US Sentencing CommissionMarcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:
During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc. President Richard Adelson for a $50 million securities fraud.
Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.
The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."
If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.
Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be. "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law. "It's one of the dirty little secrets of federal sentencing now. There are situations where which judge you pull can drive the sentence."
But, he added, the subject for debate is how widespread the problem may be. "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon? That's where analysis by the [Sentencing] Commission is needed."
The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said. "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."
Recent related posts on the DOJ letter to the USSC:
- Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission
- Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
Tuesday, July 13, 2010
Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities. But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:
[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts. Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.
I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice. As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice. Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.
The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities. There are clearly many problems with the current advisory federal sentencing regime. But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines). Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.
Thursday, July 08, 2010
Judge Bright makes pitch for sentencing councils to deal with post-Booker disparitiesA number of helpful readers have alerted me to the intriguing little concurrence penned by Judge Bright in US v. Ayala, No. 09-2123 (8th Cir. July 8, 2010) (available here). Here are snippets from an interesting read:
Sentencing discretion should not become the justification for federal courts’ acceptance of disparity between similarly situated defendants. Disparity erodes public confidence in the fair administration of our criminal justice system....
If we can agree with Justice Jackson that disparity based on the identity of the sentencing judge has pernicious effects, how, in this age of discretion, can the federal judiciary address sentencing disparity? I suggest that federal sentencing judges, particularly those in multi-judge districts, examine and institute sentencing councils similar to those that existed before the guidelines....
Although sentencing councils did not eliminate sentencing disparity, they did reduce disparity. Importantly, councils provided a means for sentencing judges to receive valuable feedback on the type of sentence being contemplated.
Although needing substantial revision, the advisory guidelines may be helpful in reducing improper disparity. However, a guideline sentence often may not be appropriate and a judge should consider and analyze the statutory factors, see 18 U.S.C. § 3553(a), to arrive at a fair and reasonable result. Sentencing councils would assist federal judges in fashioning sentences in accordance with section 3553(a) and alert judges to situations where their personal viewpoints may result in a disparate sentence.
Moreover, because of our nation’s technological advances, today’s councils could include the viewpoints of judges from various geographical areas. The recommendations of councils might be shared easily among the federal judiciary.
The judiciary’s work is not finished so long as sentencing in federal courts is affected by the fortuitous vel non circumstances described by Justice Jackson. Judges in the federal district courts as well as federal appellate judges need to address and reduce disparity in sentencing similar criminal offenders. Otherwise, a sentence may largely reflect the ideology or viewpoint of the sentencing judge rather than the nature of the crime and history and characteristics of the offender.
Monday, June 28, 2010
SCOTUS takes up long-running federal sentencing case from Eighth Circuit
It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion. This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago. I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.
UPDATE: Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be. That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.
June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Saturday, June 19, 2010
In praise of the US Sentencing Commission and hopeful about federal sentencing's future
As I continue a too-long trek back from the US Sentencing Commission's big national conference in New Orleans, I wanted to do this quick post to praise the USSC's continuing efforts to enable sentencing data and the voices of judges and sentencing practitioners drive federal sentencing reform in this post-Booker world. More broadly, I wanted to explain why, at least right now, I am more hopeful about the future of federal sentencing than I have been in a long time.
My positive feelings about the US Sentencing Commission and federal sentencing's future are no doubt impacted by the benefits of spending most of my time in the ivory tower (and perhaps also a belly too full of beignets and fried seafood). On the ground, there surely remain plenty of problems and injustices in the sentencing of some (many?) of the nearly 80,000 federal defendants being sentenced each year. Nevertheless, viewed from the ivory tower, the federal sentencing system finally seems to be moving in the right direction: the chief policy-makers within and around the Sentencing Commission (as well asmost federal judges and the Department of Justice) seem soundly focused on preserving the best features, and remedying the most troublesome features, of the federal sentencing system that Booker created. Though the post-Booker world is far from perfect, there now seems to be a pretty sound case-level balance between system-wide sentencing rules and reasoned sentencing discretion and also a pretty sound commitment by all the policy makes to keep improving the system-wide sentencing rules.
Of course, the story is not all rosy in any branch of the federal government. Congress cannot get around to making even a modest change to the severe crack mandatory minimum sentencing statutes that all agree are unjust. The Sentencing Commission is yet to really go at modifying the most problematic aspects of the drug, fraud and porn possession guidelines. President Obama continues to reveal that he lacks the wisdom and courage needed to exercise his historically important clemency powers in any way. And the federal prison population continues to hit record high levels every month. Still, despite all these persistent disconcerting realities, for the first time that I can remembers, I am more hopeful and optimistic than cynical and pessimistic about the directions in which federal sentencing law and practice seem to be heading.
Especially because I fear that the great fun I had in New Orleans at the USSC conference my be giving me too rosy a view of where federal sentencing matters stand and are headed half a decade after Booker, I welcome any and all comments intended to kill my law nerd buzz.
Wednesday, June 16, 2010
"Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums"The title of this post is the headline of this effective article by Marcia Coyle in today's National Law Journal reporting on some of the highlights of the US Sentencing Commission's recently released results from a survey of federal district judges about their views on post-Booker sentencing realities. Here is how the piece begins:
Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.
From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.
The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.
Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.
When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines....
Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing. Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.
Wednesday, April 28, 2010
Latest FSR issue, "Booker at Five," now available on-line
I am overdue in reporting that the latest issue of the Federal Sentencing Reporter, which is full of analysis and primary materials assessing federal sentencing law and practice five years after the Booker decision, is available on-line. This issue bears the simple title "Booker at Five," and an array of professors and practitioners discuss various of current state of the post-Booker sentencing landscape. The Table of Connects for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.)
FSR editor Paul Hofer played a central role in this timely FSR issue; Paul and I co-authored the issue's Editors' Observations, which is available here and is titled "A Look at Booker at Five." Here is how our introduction gets started:
The old saw “time flies when you’re having fun” does not quite capture the five years since the Supreme Court’s decision in United States v. Booker. To most observers, at least those outside the Department of Justice and perhaps a few circuit courts, the advisory guideline sentencing system created by the Booker remedial opinion is an improvement over the rigid mandatory guidelines system that the Booker merits opinion declared unconstitutional. Yet the U.S. Bureau of Prisons still runs the largest prison system in the United States, which is itself the nation with the highest incarceration rate in the world. And even district judges and defense attorneys, who may be the biggest fans of the post-Booker federal sentencing system, would surely agree that many aspects of the current system are far from perfect.
Though not everyone may be having “fun,” there has been no shortage of federal sentencing activity to keep everyone busy thinking about the ruling and its consequences and impact. In this time, more than 350,000 defendants have been sentenced under the effectively advisory guidelines. The Supreme Court has handed down five additional opinions clarifying implications of the Booker decision (with more in the works), and both district and circuit courts have grappled with issues left unanswered, with varying degrees of success (and expressions of frustration). Almost as noteworthy is what has not happened. Congress has not picked up the ball hit into its court by the Supreme Court’s Booker remedy, and the U.S. Sentencing Commission has barely acknowledged that the guidelines are advisory in its Guidelines Manual — plus, no major guideline revisions can be attributed to the decision.
In this issue of Federal Sentencing Reporter, we have solicited a range of authors to provide their perspective on what has and has not changed in the federal sentencing system after Booker. And, in these Editors’ Observations, we seek to spotlight how these perspectives provide a deeper understanding of whether the changes wrought by the Booker decision and its aftermath are the sort that those interested in sentencing justice should believe in.
Other recent FSR issues:
- FSR Issue 22.1: Alternatives to Incarceration in the Federal System
- FSR Issue 21.5: Fast Track Sentencing
- FSR Issue 21.4: On the Shoulders of Giants
- FSR Issue 21.3: "Second Look" Sentencing Reforms
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
Friday, April 23, 2010
"Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape"The title of this post is the headline of this new article by Mary Pat Gallagher in the New Jersey Law Journal. Here is how it gets started:
Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.
But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors. Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.
There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker. The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.
Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.
Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit. When judges opt not to stay within the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.
Tuesday, March 16, 2010
New scholarship complaining that reasonableness review is now quite unreasonableNow appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits. The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:
Judges, like anyone else who works for a living, need standards. Judges need to know what rules to apply, when to apply them, and who to apply them to. And judges, just like you or I, want to know how their work will be reviewed. Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.
Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions. The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker. Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.
This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits. This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally. Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation. This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.
Friday, March 12, 2010
Important and worrisome new multivariate analysis from USSC of post-Booker sentencing patternsI am pleased to see that the US Sentencing Commission has released this potent and important new sentencing data analysis, which is titled "Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Analysis." I am not pleased (though also not especially surprised) about what that analysis reveals about some post-Booker sentencing trends. Specifically, according to this new USSC report:
This report focused on three separate time periods which together spanned the time between May 1, 2003, and September 30, 2009. The Commission found a correlation between the length of sentences imposed on some groups of offenders and the demographic characteristics of those offenders. These differences were not present in all time periods under study and differed in magnitude in the time periods in which they were observed....
Based on this analysis, and after controlling for a variety of factors relevant to sentencing, the following observations can be made:
Black male offenders received longer sentences than white male offenders. The differences in sentence length have increased steadily since Booker.
Female offenders of all races received shorter sentences than male offenders. The differences in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).
Non-citizen offenders received longer sentences than offenders who were U.S. citizens. The differences in sentence length have increased steadily since Booker.
Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.
The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.
Any serious student of the history of prosecutorial and judicial sentencing discretion knows that with any increase in discretion power will come some increase in disparate outcomes and the risk that disparities are influenced by non-legal factors that we might wish would not (but always does) influence how imperfect humans exercise their discretion. These realities always demand careful assessment and sober reflection, but they also always demand a careful reaction and sober consideration of what remedies are possible and what remedies might prove worse than the disease.
Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges. I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders.
Thursday, February 25, 2010
Effective ABA Journal review of Booker at five
Mark Hansen has this effective new piece, headlined "You Say You Want a Revolution: In Booker plus five, there’s been rumbling but hardly rebelling," about federal sentencing life since Booker. Here is how it begins:
Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.
Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines. Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”
Five years out, however, Booker has become anything but revolutionary. So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.
Wednesday, February 24, 2010
Off to Miami for National Institute on White Collar Crime
As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute. I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.
Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General. In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule." Here is how my panel is titled and described:
SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.
Thursday, February 18, 2010
"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"
The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today. Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:
- William K. Sessions III, U.S. District Court Judge, Vermont and Chair, U.S. Sentencing Commission
- Paul Cassell, Ronald N. Boyce Presidential Professor of Criminal Law, Univ. of Utah S.J. Quinney College of Law
- Benjamin McMurray, Adjunct Professor of Law, Univ. of Utah S.J. Quinney College of Law
- Steven L. Chanenson, Professor of Law, Villanova University School of Law
- Jonathan Wroblewski, Director, Office of Policy and Legislation, Criminal Division, U.S. Department of Justice
- Erik Luna, Professor of Law, Washington and Lee School of Law
Here is how the promotional materials describe the event:
This symposium will explore issues surrounding judicial discretion and sentencing. After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker. The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime. The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.
Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at dashboard.law.utah.edu.
February 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (9) | TrackBack
Monday, December 07, 2009
Supreme Court grants cert on applicability of Booker in sentencing modifications!I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings. Here are the basics from this report at SCOTUSblog:
The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding. Review was granted even though the Court had previously refused to hear the issue in a number of cases. The U.S. Solicitor General recommended a denial in this case, too.
Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day. In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.
UPDATE: Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here. As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.
December 7, 2009 in Booker and Fanfan Commentary, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Thursday, November 05, 2009
Playing the "blame game" for increased sentencing disparities after Booker
With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities. Here are some of my early thoughts:
1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker. With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.
2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases. Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.
3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines. As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.
4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases. Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:
A. Congress --- for failing to seek to reform or revise the entire system after Booker
B. US Sentencing Commission --- for failing to revise the most unsound guidelines
C. SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content
D. Justice Department --- for failing to urge Congress or the USSC to do better
Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years. Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.
But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day. If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.
As Booker approaches five, the individual/equal justice debate continues on
Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules. The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice.
The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:
[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.
"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....
Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime. But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.
Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences. Average prison sentences for fraud increased to about two years in the nine months ended in June 2009. That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.
But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago.... The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.
For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s. "You see the most disparity and the most potential for disparity, and I think that's a bad thing."
Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom. "To me," he says, "that risk is tolerable."
Concern that the relaxed guidelines are creating unfair disparities appears to be growing. In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."
Monday, November 02, 2009
"Is Colorado’s U.S. Bench Embracing Sentencing Responsibility?"The title of this post is what would have been a praiseworthy headline for this local article from the publication Law Week Colorado. Instead, as a click through will show, the publication went with the more provocative headline of "Is Colorado’s U.S. Bench Ignoring Sentencing Guides?". The article is a bit more balanced that the headline, and here are snippets:
Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so. At least one judge and the state’s federal public defender disagree.
Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.
“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission. He said he was particularly concerned that the departures from the guidelines result in more lenient sentences. “Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines. One judge has told one of my AUSAs [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”
Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned. Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.
Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims. “I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said. Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.
John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges. Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.
Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”