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January 20, 2005

Anecdotes, data and the USSC's big challenge

I am hearing a range of post-Booker anecdotal reports from the federal sentencing front-lines.  I have heard stories of some district judges following the guidelines closely, apparently taking an approach similar to Judge Cassell in Wilson (basics here, commentary here and here).  I have also heard of a few judges focusing more on punishment purposes in particular cases, apparently taking an approach similar to Judge Adelman in Ranum (basics here, commentary here and here).  And, as detailed here, I have even heard of some talk of Blakely-izing after Booker.

Notably, the anecdotal reports of on-the-ground developments are now appearing in the papers.  This article details a federal sentencing from Hawai'i in which Chief US District Judge David Ezra focused on punishment purposes to justify a shorter prison term for a first offender who has undergone extensive sex-offender treatment after a conviction for downloading child pornography.  Similarly, this story from New York details a sentencing decision by US District Judge Richard J. Arcara which seemed to put the focus, in another a non-violent first-offense case, on rehabilitation concerns.

Because newspapers will always focus on cases where defendants were "cut a break," an enormous challenge for the US Sentencing Commission and others will be to keep Congress from making policy by anecdote.  In a huge federal system with thousands of sentencings every month, there will inevitably be stories of seemingly extreme decisions (both too harsh and too soft).  But no definitive judgments should be made (or responsive legislation drafted) based on a few anecdotes.  This is why I keep urging  everyone, especially Congress, to take a deep breath to allow us all to see what the US Sentencing Commission data shows for the range of post-Booker cases.

I hope, as suggested in this discussion, that the USSC's data collection will particularly focus on the distinction between violent crimes committed by persons with a long criminal history and non-violent crimes committed by first offenders.  My instinct is we will see a lot of guideline following in the former cases, and more variations in the latter cases.  But only the data, and not a few anecdotes, will tell.

January 20, 2005 at 11:42 AM | Permalink


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Doug said, 'Because newspapers will always focus on cases where defendants were "cut a break," an enormous challenge for the US Sentencing Commission and others will be to keep Congress from making policy by anecdote.'

I'm not so sure that's true. Unduly harsh sentences also get plenty of press (e.g., Jamie Olis). What *is* true is that the tough-on-crime wing of Congress is likely to seize on a handful of lenient sentences, and attempt to portray them as typical. Much of the law-making in Congress is a reaction to the most extreme cases.

Posted by: Marc Shepherd | Jan 20, 2005 1:19:00 PM

I don't know if this is the right place to post this...but I was wondering how other districts are treating BLakley/Booker/Fanfan in direct appeals or pending appeals.

I know that the 11th circuit has a policy to appose all appeal bond and resentencing motions....are other districts doing this as well?

Posted by: DN | Jan 20, 2005 1:57:42 PM

Prof. Berman, are you advocating a DIFFERENT system for violent as opposed to nonviolent offenses in which the former must follow the Cassell approach and the latter must follow the Adelman approach? I certainly hope not.

Marc Mauer may be right that the severity angle is critical. However, that should not matter when we are talking about process and procedures. Decide how to determine the sentence. Then address whether the resulting recommended/advisory/near-mandatory/etc guidelines sentence is appropriate.

Posted by: Jim | Jan 20, 2005 2:38:07 PM

Your "cut-a-break" theory is exactly right. It's not just the newspapers. Congress makes knee-jerk legislation, and all it needs to do is listen to a couple of reports about some defendant getting a break. It will classify all judges as loony and enact legislation even more Draconian than it already it. In fact, Justice Stevens in footnote 16 of his dissent in Booker quotes Senator Hatch, who says that "the game is over for judges," and he is "sick" of "softhearted judges" who would try to sentence someone in any other manner that what Congress would mandate. Congress does not believe that federal judges are competent to decide what an appropriate sentence is, and Congress is determined to control this area of the law. All Congress will need is a couple of cases where sentences are below the Guidelines range before it will decry the "softhearded" judges and make some more ill-advised and exceedingly harsh criminal penalities.

Posted by: joe Phelan | Jan 20, 2005 5:05:16 PM

check out this civilian backgrounder on Booker et ceteri

Posted by: wg | Jan 21, 2005 7:38:29 AM

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Posted by: | Oct 14, 2008 6:56:27 AM

any humorous anecdotes on policy formulation

Posted by: asif | Jul 11, 2009 2:01:45 AM

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