Dead Booker walking?: a "drift toward lesser sentences"

Recently updated statistics from the US Sentencing Commission (details here) 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 the concern expressed by AG Alberto Gonzales about "a drift toward lesser sentences" when he called for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here). 

In my Editor's Observations in the latest FSR issue on the post-Booker world (details here), I noted that "the Sentencing Commission's post-Booker data reveal that average and median sentences in all major categories of crimes are virtually unchanged from pre-Booker levels."  Indeed, what is most notable from a review of sentence length data (at pp. 13-15) in the latest post-Booker data report is that, from 2001 to pre-Blakely 2004, there was a significant drift toward higher sentences for all crimes and in all major categories of crime except immigration offenses. 

Turning specifically to a comparison of pre-Blakely 2004 and post-Booker sentences, we do now see a one-month drop in the average sentence in all cases (from 56 to 55 months) and similar slight declines in immigration and firearm cases.  However, average and median sentence length for these periods are identical in drug cases and there is a slight increase in theft/fraud cases.  And, notably, in all categories except immigration, average and median sentences post-Booker are all significantly higher than they were as recently as FY 2002.  Put simply, sentencing in the year after Booker has been as tough or tougher than sentencing in the years before Booker.

On this record, I have a hard time identifying a "drift toward lesser sentences," though one might point to the halting of a prior drift toward higher sentences as evidence of Booker's impact.  Moreover, the Justice Department might reasonably be concerned that, if the current culture of guideline compliance starts to change, lower sentences may follow.  However, given reasonableness review patterns — with all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, while nearly all below-guideline sentences are being reversed as unreasonable — DOJ has no reason to worry that the culture of guideline compliance will change any time soon.

Prior posts in this series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice