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September 28, 2004

Who will be getting "sentencing windfalls"?

In late July, I lamented here the failure of the US Sentencing Commission to take a leading role in the post-Blakely policy conversation about the future of federal sentencing. And, as detailed here, I was discouraged to see from the Acting Solicitor General's reply brief that the USSC is providing critical information about how many federal cases involve Blakely factors to DOJ and the SG without making that information publically available.

Rather than continue to bemoan these realities, I now want to focus my attention on the single data issue that seems most important to me on the issue of severability — namely, who would be getting "sentencing windfalls" if the guidelines are deemed severable? Of course, I have explained here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable. Part of what drives that instinct is my sense that the vast majority of federal offenses involve drug crimes or immigration offenses — offenses which (1) most federal judges believe are sentenced much too harshly under the existing guidelines and (2) involve offenders with many mitigating personal circumstances that the existing guidelines now declare irrelevant.

Let's look briefly at some of the numbers. According to publically available USSC data here, roughly 60% of the federal criminal case load involves drug offenses or immigration offenses. And this chart shows that, in roughly 70% of all drug cases and about half of all immigration cases, the defendant was sentenced at the absolute bottom of the applicable guideline range. Though this data could be interpreted in many ways, it does not seem unreasonable to speculate that in many of these cases sentencing judges freed from guideline constraints would be eager to go below (perhaps well below) the sentences now mandated by the guidelines. Indeed, the Ninth Circuit case discussed here provides a good example of how much more lenient a sentencing judge wanted to be in an immigration case if the guidelines had not served as a legal limit on leniency.

Of course, despite the fact that the federal criminal justice system is mostly about drug offenders and immigration offenses, my sense is that the SG and DOJ have their focus on a different (much smaller) class of federal offenders. Specifically, in comments to this post, "a government lawyer" says "there are defendants who swindled grandma & her friends out of $5 million who are looking at 6 month maximums." As this comment reveals, it seems that the government's true concern about "sentencing windfalls" comes in the context of fraud cases.

But, as Professor Frank Bowman highlighted here in USSC testimony last year, there is "a predominance of low-level, low-loss cases in the federal system." Most federal defendants are sentenced in fraud cases for losses caused of less than $40,000. I am sure there are a few cases of defendants "who swindled grandma & her friends out of $5 million," but is there really likely to be more than a handful of these cases in the pipeline? And is it worthwhile to jettison the entire guideline structure, and to allow thousands of drug and immigration offenders a chance at much lower sentences, simply to "save" that handful of cases (especially when, as I suggested here, upward departures might be available to avoid true sentencing windfalls in these cases)?

Of course, all my low-rent data analysis might be washed up here. But that is why I want to see, and have publically available, the more sophisticated work that the experts at the US Sentencing Commission must be doing.

September 28, 2004 at 02:56 PM | Permalink


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I think it is also basically guesswork to really consider the correct plea rates and departure rates when only 2002 pre-Feeney amendment data is available. I hope somebody besides defense attorneys are recognizing that if the DOJ is truly motivated by punishing the fraud cases, then why are they giving sweet deals to the guys in everyone's favorite kick around case- Enron? and other very serious corporate fraud cases- does Healthsouth come to anyone's mind? The guys who made multiples of millions for themselves and who were decision makers, get the deals and testify against the shmucks who got no money for themselves out of those sham deals(I'm not talking about salaries and big annual bonuses-I'm talking about under-the-table-cash for pushing through a specific deal they created in their own heads and that they had the power and position within the company to push through- aka motive).

Say what you will, but the super elite Enron task force is conducting prosecution just like the typical shmo prosecutor which is give the deal to the most guilty- the guy with the most to lose who is aching for the deal- and have them testify against many others. Sure they are going after the big guys but will bulldoze all the little guys who they think stand in your way too. All guilty anyway? Maybe. But the guys whose greed started it all still have a whole lot of money in their pockets and will let everyone else pay the severest price for the folly of fighting back. All with the express protection of their friendly prosecutor. It seems this is the way it works in the drug prosecution world too- under these conspiracy type charges, a monkey could conduct a brilliant prosecuton. No offense..

Posted by: Non-Lawyer | Sep 28, 2004 4:24:56 PM

I am a former state district attorney who is now doing federal public defender panel work. I found about your site from the Nashville Fed PD office and now enjoy reading it every day, in light of Blakely.

I have a client who is being "enhanced" with "relevant conduct" outside the 5 year statute of limitations. Is it a windfall to make the Gov. abide by its own limitations of actions?

Posted by: Joe Baugh | Sep 28, 2004 5:16:26 PM

Prof. Berman, while I agree with your basic premise that we shouldn't worry about windfalls when deciding whether the Guidelines could/should be severable, I'm not too sure the "low end" statistics necessarily prove your point. In my experience, courts go along with low end after the prosecutor has recommended low end pursuant to a plea agreement. I would be very curious to see if those percentages dramatically changed for defendants who went to trial. My guess is that they would. Thus, the predominance of "low end" sentences would more likely be attributed to judges' desire to encourage plea bargaining and avoid trials (especially among newer federal judges who know only a Guidelines-based system).
1. And I don't know if you can conclude that the government is most concerned with windfalls to fraud defendants (1) because an anonymous government poster is hardly a mouthpiece for the SG or AG, (2) because, as I have pointed out in earlier posts, fraud loss levels are an easy and extreme example (and one early in part 2 of the Guidelines), and (3) except for corporate crime, there is no "war on fraud" but there is a "war on drugs." Whether stated or not, the government is most interested in gun, drug, and immigration cases, and enhancing factors can have a strong effect on those cases.
I still agree with you, however, that windfalls should still not play a role in the severability question, largely for the other arguments you've articulated in the past. And I certainly agree that more data from the USSC would be helpful in understanding any possible Booker ramifications.

Posted by: District Clerk Battling Blakely | Sep 28, 2004 5:21:58 PM

Great comments everyone, keep them coming. In particular, everyone should speculate about the fact unless and until the USSC starts sharing the real data it has.

Posted by: Doug B. | Sep 28, 2004 8:10:17 PM

I'd like to emphasize again this point: "an anonymous government poster is hardly a mouthpiece for the SG or AG"

That said, it seems to me one can reconcile my observations and Professor Berman's (i.e., that anecdotally most federal offenses are guns, drugs, and immigration, and we would expect unguided sentencing to result in lower sentences in many such cases) simply by saying that a reasonable prosecutor might conclude that non-guidelines sentences for guns, drug, and immigration offenses are likely still to be relatively (or, to many, more) appropriate to the crime, but white-collar sentences well may not be. I do not suggest that that is the OSG's reasoning (because I am not privy to it, and my guess is as good as yours) but I certainly feel that way.

Posted by: a government lawyer | Sep 29, 2004 2:06:13 PM

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