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February 10, 2005

The House hearing and data versus anecdote in sentencing policy-making

The Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" conducted this morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has concluded, and I am pleased to see that all of the witnesses' written testimony is now linked at this official site.  (Also there now is the Chairman's opening statement, and I am hopeful a full transcript of the proceedings will be provided in due course.)

Much of what was predicted here came to pass, and Daniel Collins' advocacy of topless guidelines reinforced the prosecutorial tilt in the assembled witnesses.  The interesting Q and A, in which Representatives often spotlighted pet issues with the federal sentencing system, merits its own future post and analysis.  But first I must make some observations based on the written testimony concerning the use of data and anecdote in formulating federal sentencing policy and federal sentencing reforms.

First, Chair Hinojosa and the USSC staff are to be greatly lauded for including in his written testimony data on post-Booker sentencings to date.  Significantly, that data suggest, as noted previously here, that we may actually be seeing an upward movement in the length of post-Booker sentences, although the data are still very preliminary.  What's most important and impressive is the USSC's obvious commitment to data analysis and a data-driven response to Booker.

Second, Assistant AG Christopher Wray is likewise to be lauded for closing his testimony by stressing the importance of sentencing data and the need for "accurate, real-time information on sentencing ... to play an appropriate and effective role in the public debate."  But Wray should also be criticized for his anecdotal attack on two post-Booker sentencings and for a failure to provide any of the data which, as detailed in the Comey memo and as suggested in this speech by a US Attorney, clearly are being collected and analyzed by DOJ in real-time.  The cynic in me is inclined to assume that the data DOJ has assembled to date does not support its claims as much as selected anecdotes.  (Relatedly, it is notable that DOJ is not spotlighting or complaining about individual cases in which an imposed sentence was unduly harsh; DOJ seems really concerned not about undue disparity but rather undue leniency.)

Third, speaking of data and anecdotes, I was intrigued to see Daniel Collins, one of the chief proponents of the Feeney Amendment to the PROTECT ACT, stress USSC data in his testimony to argue that "We should not make fundamental structural changes solely to accommodate a problem that does not occur in 99.2% of the cases."  That statement struck me as jarring given that the Feeney Amendment, especially as originally proposed, sought to eliminate virtually all downward departures even though DOJ had identified downward departures as a major concern in some economic and sex offense cases and even though USSC statistics revealed that DOJ was successful in reversing 75% of the departures it appealed.  (The materials in this issue of the Federal Sentencing Reporter provide more background on the Feeney Amendment and prior efforts by Collins to engineer fundamental structural changes to the guidelines to address a problem seemingly evident in only a relatively small number of cases.)

February 10, 2005 at 12:58 PM | Permalink


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To the extent that USSC Chair Hinojosa's stats are correct -- that post-Booker sentencing shows no downward trend below the Guideline range -- I can only say "Shame on the defense bar!" We're clearly not advocating effectively enough, given the opening of the "floor" and the principle of parsimony which by definition-- and legislative mandate -- favors downward and disfavors upward decisions.

Posted by: Peter G | Feb 11, 2005 11:34:24 PM

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