New USSC post-Booker data and prosecutorial variations

Perhaps answering my query in this post concerning how the US Sentencing Commission might celebrate Booker's anniversary, late Wednesday the USSC posted on its Booker webpage a new batch of post-Booker sentencing statistics.  This latest "Post-Booker Sentencing Update," which can be accessed here, provides an "extensive set of tables and charts presenting data on post-Booker cases received, coded, and edited ... [through] close-of-business on December 21, 2005."

Now including nearly 55,000 post-Booker sentencings, the latest data run has lots of fascinating new information about district-by-district departure and variance rates and on the number/extent of government-sponsored and judge-initial departures.  Though there is far too much data for me to take in quickly, I cannot help but notice one key reality over and over again:

Even after Booker, different applications of prosecutorial discretion appear to have a much greater impact on within-guideline sentencing rates and overall sentencing patterns than does the exercise of judicial discretion.

Consider these examples from the district data: in Idaho, prosecutors have sponsored a sentence below the guidelines in nearly 46% of all cases, but in Montana this occurs in just over 11% of all cases; in the Eastern District of Virginia, prosecutors sponsored a sentence below the guidelines in less than 8% of all cases, but in the Western District of Virginia this occurs in over 26% of all cases.  (Also of note, the "degree of decrease" in cases involving government-sponsored substantial assistance departures is often far greater than the "degree of decrease" in cases involving judge-initiated departures.)

Critically, I do not mean to suggest that prosecutors are contributing to unwarranted post-Booker sentencing disparity through different applications of prosecutorial discretion in various districts.  Differences in case mix and other factors may show that these sorts of variations are all warranted.  The key point is that it would be highly improper for anyone (and especially improper for prosecutors) to point to the USSC data showing differing judicial departure rates after Booker and say "aha, this is proof of increased unwarranted disparity."  A focus on the prosecutorial data suggests that differing applications of the guidelines can perhaps be entirely justifiable.  It also highlights that we really cannot fully assess sentencing rates without also knowing a lot more about sentencing reasons.

Related posts discussing how to consider and interpret USSC data reports:

• The more things change, the more....
• My Booker data "wish list"
• Trying to parse the USSC's latest data
• Anecdotes, data and the USSC's big challenge