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October 7, 2005

Sloppy article on post-Booker USSC statistics

The New Jersey Law Journal today has this article headlined "3rd Circuit Sentencing Departures Rise in Wake of Booker and Fanfan," which just reports on and gets reaction to the latest batch of post-Booker sentencing data from the USSC.  Unfortunately, the article is sloppy in its reporting and use of terminology.

For example, even the headline is technically wrong: departures have actually declined in the Third Circuit and elsewhere in the wake of Booker, although the overall number of sentences outside the guideline range has risen due to so-called Booker variances.  In addition, the article asserts that Third Circuit judges, when granting "departures," do so "a third of the time without citing a specific reason, according to a U.S. Sentencing Commission report."  Unless there is some secret USSC report, I do not believe any USSC data or evidence support the assertion that many departures or variances are granted without stated reasons.  (Based on the full article, it appears the reporter has improperly decided to describe all Booker variances as departures "without citing a specific reason," but that is not an accurate reflection of any of the Booker variances I have seen.)

Notably, the article also does not mention the interesting reality that average and median sentences nationwide have actually increased after Booker (although we do not yet have circuit-by-circuit data from the USSC on this issue).  So the story presents a one-sided, as well as an inaccurate, perspective on the post-Booker data.

Though the sloppy reporting in this article is unfortunate, it is perhaps understandable given the complicated realities and terminology of post-Booker sentencing.  It also suggests that the US Sentencing Commission needs to do a lot more than just produce data; it should issue a full report to explain the data for better public consumption and understanding.  The USSC's recent statement of priorities suggests we can expect such a report sometime next year, but articles like this piece in the New Jersey Law Journal make me worry that a USSC report next year might end up being a day late and a dollar short.

October 7, 2005 at 12:40 PM | Permalink


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