Latest USSC data: "traditional" departures making a comeback

I have had a chance to look over the lastest USSC post-Booker data, and I have concluded that, were the post-Booker story to become a Disney production, traditional departures might be cast in the role of Cinderella.  Though I have long thought departures could be quite beautiful, they became the forgotten stepchild after Booker made the guidelines advisory.  Indeed, the Seventh Circuit has gone so far as to call departures “obsolete” after Booker.

Yet, with the Sentencing Commission playing fairy godmother by urging federal judges to view departures as still beautiful after Booker, in 2006 we are seeing traditional departures making a notable comeback.  The latest data from the USSC, which helpfully is focused on fiscal year 2006 data, allows for a comparison of sentencing the first 9 months after Booker (FY 2005 post-Booker) with sentencing in the following 8 months (FY 2006).  And, in those periods, we see the fortunes of departures fall and then rise again.

According to the USSC statistics, in FY 2005 post-Booker, only 3.5% of sentences involved judge-initiated departures (up and down), while 11.1% of sentences involved Booker variances (up and down).  But, so far in FY 2006, 6.1% of sentences have involved traditional departures, while only 8% of sentences involved Booker variances.  (Comically, even though the Seventh Circuit has repeatedly called departures "obsolete," USSC data show that its district courts so far in FY 2006 have departed in 6.7% of all cases, placing this circuit above the national average.)

In some settings, the label for non-guideline sentences may not be much more than a matter of semantics.   But even semantics can matter for those using the USSC data for policy advocacy.   For example, one could validly say that, in FY 2006, the number of Booker variances has decreased by nearly 30%.   However, one can also validly say that, in FY 2006, the number of departures have nearly doubled and that the number of within-guideline sentences remains well lower after Booker than before Booker.