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October 8, 2005

When will the USSC (or DOJ) release district-level and extent-of-variance data?

This interesting article discussing a federal re-sentencing resulting in a significantly reduced term for two defendants in Pennsylvania has whetted my appetite for district-level and extent-of-variance data from the US Sentencing Commission (or the Justice Department). 

The news story is focused on significant sentence reductions for two drug defendants.  The reductions were premised on crack/powder disparity concerns and led the AUSA to assert that the sentencing judge "was usurping the role of legislators by departing substantially from the congressionally approved sentencing guidelines."  And the article includes this fascinating report from a local federal prosecutor about sentencing in the Eastern District of Pennsylvania:

Since [Booker], federal judges in eastern Pennsylvania who have conducted resentencings have issued shorter sentences for 60 percent of the defendants, according to Robert Zauzmer, an assistant U.S. attorney who heads the office's appellate unit.  But most of those reductions were modest.  In 10 percent of the cases, including the Ricks brothers' cases, the reductions were substantial, Zauzmer said. 

This revealing report confirms my belief that federal prosecutors are keeping data on district-by-district post-Booker sentencing outcomes, and I am sure the USSC is doing the same.  But none of this data has yet been made publicly available, even though we have 10 full months of post-Booker outcomes.  The USSC has done a very good job promulgating cumulative and circuit-by-circuit data, but district-by-district is essential for getting a full picture of post-Booker sentencing realities.

Relatedly, this report spotlights that the extent of departures and variances may ultimately be more important for assessing post-Booker sentencing than just the raw number of non-guideline sentences.   Indeed, as noted in this post, back in February US Attorney Robert McCampbell stressed in his USSC testimony that we all ought to be concerned more with the magnitude of variances than the raw number, since large variances pose a much greater risk of disparity than small ones.  (As McCampbell noted, I made this point about departures in my article Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).)  The USSC has not released any data to date on the extent of departures and variances; here's hoping they might soon.

October 8, 2005 at 04:11 PM | Permalink


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