Dead Booker walking?: disparity in theory and practice

AG Alberto Gonzales' speech last week may foreshadow a Booker fix proposal coming from DOJ before long (details here), which inspires me to return to my "Dead Booker walking?" series.  As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker.  In this installment, I will focus on sentencing disparity in theory and in practice.

Since Booker was decided, the Justice Department has warned that an advisory guideline system might increase sentencing disparities.  And, in a speech last summer calling for a Booker fix (basics here, commentary here and here and here), Gonzales asserted that "evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences."  But, for sensible policy debate, it is important to unpack the concept of sentencing disparity in theory and in practice.

Sentencing disparity in theory (the challenge of assessing "true" disparity):  Some may point to different "guideline compliance" rates to suggest unwarranted sentencing disparity from region to region.  However, Justice Alito has effectively explained — in this 1992 Federal Sentencing Reporter article entitled "Reviewing the Sentencing Commission's 1991 Annual Report," 5 Fed. Sent'g Rep. 166 — why simple "comparisons of departure rates of different circuits and districts [are] unsound":

[D]ifferent districts — generally for sound reasons — prosecute very different mixes of cases.... Consequently, no reliable inter-district comparisons can be made without controlling for differences in the mix of offenses prosecuted....  Do I mean to say that all inter-district disparities indicated by the Commission's statistics can be attributed to such differences in their case mix?  Absolutely not.  The "true" disparities, if I may use the term, may be smaller than those suggested by the Commission's numbers, or they may actually be even greater.  The point is that we just can't tell from the Commission's statistics, and we will not be able to tell until a much more sophisticated analysis of each district's cases is performed.

Moreover, beyond Justice Alito's astute insights about case mix, one must realize that the federal guidelines themselves can produce or exacerbate certain disparities, which in turn make differences in "guideline compliance" rates a poor proxy for "true" sentencing disparity.  Professor Albert Alshuler makes this important point effectively in his recent contributon to the Stanford Law Review's great sentencing reform issue: "When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it.  Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper."

Sentencing disparity in practice (the realities of prosecutorial discretion): Beyond theoretical problems with using "guideline compliance" rates to assess "true" disparity, the Sentencing Commission's post-Booker data highlight that prosecutorial discretion has a much bigger impact on "guideline compliance" rates than does judicial discretion.  As the latest USSC data document, nationwide sentences below the guidelines are twice as likely to be the result of a prosecutor's recommendation to impose a lower sentence than the result of an independent determination by the sentencing judge. 

This reality provides important perspective on data concerning post-Booker "variances."  The USSC data show that judges nationwide are using their new post-Booker authority to reduce sentences below the range in less than 1 out of every 10 cases.  But prosecutors nationwide are using their long-standing authority to request sentences below the range in nearly 1 out of every 4 cases.  If Congress really believes that the overall "guideline compliance" rate is of fundamental importance, it should call in DOJ officials to account for their practices before worrying too much about how sentencing judges are using their new discretion after Booker.

Moreover, the post-Booker sentencing process reinforce why any federal policy-maker genuinely concerned about sentencing disparities ought to focus on the exercise of prosecutorial discretion before worrying too much about judicial discretion.  Even after Booker, district judges have to provide a reasoned explanation for the exercise of their discretion, and each sentencing decision is subject to appellate review.  Prosecutors never have to explain their exercise of discretion, nor are their decisions subject to serious review.

Prior posts in this series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate