Professor Bowman's latest fix on the post-Booker world

Now available via this link at SSRN is Professor Frank Bowman's latest opus, "The Year of Jubilee...or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker."  As the SSRN abstract explains, Frank's article explores "available data on the operation of the federal sentencing system during the eleven months" following Booker.  Providing a much fuller elaboration of some points rehearsed in this Debate Club debate, Frank's article is chock full of important observations and trenchant insights about post-Booker developments.

There is much to highlight in this work, and I especially recommend Frank's concluding thoughts in the final part of the article.  Here is a sample from that section:

[C]onsider four facts about 2005.  First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration.  Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges.  Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004.  Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.

These facts about the post-Booker experience reinforce conclusions many observers have reached about federal sentencing throughout the Guidelines era.  First, the behavior of the careful, cautious, public-safety-conscious judges and prosecutors who run the federal criminal justice system strongly suggests that they believe the severity of sentences called for by the guidelines is often (though by no means always) greater than necessary to achieve the ends of justice.  Second, the high severity levels that characterize the federal system can only be maintained by unremitting efforts at central control of the federal criminal process....

The simplest lesson is that we have a federal sentencing system with a severity level that, at least for some common offenses, is pegged higher than the day to day judgments of the legal professionals who operate it will support.  Because the severity level of the system is consistently at odds with the professional judgments of federal judges and prosecutors, only tight centralized controls can keep it propped up.  Those tight central controls in turn breed resentment, evasion, and institutional conflict.  If one is willing to grant that the judgment of frontline sentencing actors is entitled to considerable deference when making sentencing rules, one component of any post-Booker reform proposal should surely be a serious, bipartisan, inter-branch, and interdisciplinary re-examination of at least those sentencing levels and guidelines rules most productive of evasion by the front-line actors who know the system best....

[S]omeone needs to remind federal policymakers of an obvious truth — if laws are widely and persistently evaded by the very officials assigned to enforce them, at some point one should start questioning the wisdom of the laws rather than the fidelity of the enforcers.  In the end, one very good way to promote guidelines compliance is to write guidelines that produce outcomes those who run the system are happy to accept.