« Another editorial urging release of Genarlow Wilson | Main | Should the prosecutor request clemency for Genarlow Wilson? »

December 20, 2006

The stunning data on circuit reasonableness decisions

For over a year, and especially as ugly reasonableness patterns emerged, I have been hoping the US Sentencing Commission would start cataloging reasonableness review outcomes and begin analyzing how Booker is being applied at the circuit level.  To date, however, the USSC has not provides any  comprehensive data or sophisticated analysis of Booker reasonableness review.

Fortunately, Claiborne and Rita, the SCOTUS Booker reasonableness cases, has prompted others to do this analysis.  As noted before here, as part of an amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government."   

In addition, the federal public defenders have done some amazing analysis of the realities and impact of Booker reasonableness review.  Their work is available though this great webpage, where one finds this report:

Data on Appellate Review: Now posted on the Booker/Fanfan Resources page are a graph and the data used to prepare it showing a widening gap between the rate of below-guideline sentences imposed in circuits that have adopted a presumption of reasonableness and those that have not (click here); a comprehensive review of court of appeals decisions between December 1, 2005 and November 30, 2006 showing the rates of affirmance and reversal of within, above and below-guideline sentences at the national and circuit levels, as well as a comparison of rates in presumption and non-presumption circuits (click here).  Also posted now are transcripts of sentencing hearings in which judges expressed the belief that they could not sentence outside the guideline range (click here).

Recent related posts on Claiborne and Rita briefs:

December 20, 2006 at 07:53 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The stunning data on circuit reasonableness decisions:


Wow. What a great resource from the NYCDL.
The Fourth and Eighth Circuits should be ashamed, frankly -- it truly is "same as it ever was." And it seems that these jurists are simply ignoring the point of Booker. And I'm sure, once you get a nice body of case law, it's easy to cite the previous panel decisions and say, this case isn't any different -- defendant you lose. But I've always thought of the Eighth Circuit as at least "thoughtful pro-government;" these stats show otherwise.

Posted by: (Former) District Clerk Battling Blakely | Dec 20, 2006 8:13:02 AM

Dear Doug,

Without intending to express an opinion one way or the other on the cases before the Court, I pass along several observations about statistics:

1. It should surprise no one that appellate courts that view the Guidelines as pretty good (but not perfect) reflections of the statutory goals of sentencing tend to reverse sentence that stray from the Guidelines more frequently than courts that do not share that view.

2. The appellate statistics compiled by the defense bar likely overstate compliance with the Guidelines in the much broader universe of sentencing in the districts courts since those numbers fail to account for below-Guidelines sentences that were not appealed.

3. If statistics (from the Commission’s most recent quarterly data set) prove anything, they prove that in about 1 of 3 cases (36%) a defendant will receive a sentence below the Guidelines. Conversely, a defendant has about 2 chances out of 100 (1.8%) of receiving a sentence above the Guidelines.

4. Even the statistics from the Commission tend to overstate Guidelines compliance since they fail to account for Rule 35 reductions.

Take care, and keep up the good work.


Richard G. Kopf
United States District Judge

Posted by: Richard Kopf | Dec 20, 2006 10:47:46 AM

To follow up on Judge Kopf's second point, one plausible explanation for this might be that the government is simply less likely to appeal a below-guidelines sentence than a defendant is to appeal an above-guidelines one. If the government generally follows a policy of appealing sentences that it believes fail significantly to reflect the seriousness of the offense, whereas criminal defendants are prone to appeal any within- or above-guidelines sentence regardless of its objective reasonableness, we might well expect to see statistics like these, but nevertheless conclude that post-Booker reasonableness review does not unfairly disfavor criminal defendants.

Posted by: James Dillon | Dec 20, 2006 11:05:35 AM

Thanks a ton for Judge Kopf's willingness to even participate in a discussion like this.

Judge Kopf's first observation, while quite valid, points to one central conundrum: the disparity of reversal rates between above-Guidelines and below-Guidelines sentences. Regardless of whether a circuit court thinks that the Guidelines are fairly good, do the courts of appeals treat upward variances different from downward variances? If so, on what legal basis? A near- 100% reversal rate for below-Guidelines sentences and a near-100% affirmance rate for above-Guidelines sentences, ostensibly using the same standard of review, is a HUGE disparity. This difference isn't about whether a given circuit court (or panel) thinks that the Guidelines work pretty well, but whether each panel views each type of variance under the same legal standard of review. As such, it goes to the very heart of the legitimacy of the appeals process now in place to review sentences post-Booker.

Judge Kopf's third observation, that the district courts consider downward variances to be appropriate 1/3 of the time while upward variances are appropriate only 2% of the time, is dramatic evidence that the district courts consider the Guidelines to be overly harsh. (N.B. -- is Judge Kopf's observation from appellate data or district-court data? If it's from appellate data, and excludes many below-Guidelines sentences -- see below -- then this point is even stronger.) Circuit-court judges may disagree with district judges about the appropriateness of the sentences established by the Guidelines, or they may otherwise be institutionally limited in their ability to fairly determine the "reasonableness" of an out-of-Guidelines sentence, but in either event Judge Kopf's observation highlights the degree to which the Guidelines do not reflect the sentencing judgment of the district judges -- the very people who have the best vantage point to determine the fairness of particular sentences.

Lastly, Judge Kopf's second observation (that a sample or database of appeals may be biased by leaving out below-Guidelines sentences that have not been appealed by the United States) is one that, while often repeated in this website, SHOULD have an empirical answer. Has anyone looked at the available data and determined the frequency that the U.S. appeals below-Guidelines sentences? If so, please give us the data source and your conclusions so that we can put this hypothesis to bed.

Mark Pickrell

Posted by: Mark | Dec 20, 2006 2:59:34 PM

Judg Kopf: I wat to echo Mark's praise for your comment and also question how your points account for the extraordinary rate of affirmances for above-guideline sentences. Especially in light of the parsimony provision on 3553(a), one might expect there to be more reversals of above- than below-guideline sentences. But, instead, circuit rubber stamp sentences going up, but readily second-guess sentences going down.

In addition, you lump prosecutorial initiated and judge-initiated below-guideline sentences in your 1 out of 3 stat. To the extent circuits think the Guidelines are so great, they ought to be more suspect of the 25%+ cases in which prosecutors give defendants guideline breaks. Or is it that we trust (largely unaccountable)prosecutors when they cut defendants --- like Andrew Fastow --- big breaks, but never trust (more accountable judges) when they view the guidelines as too harsh.

Posted by: Doug B. | Dec 20, 2006 6:18:35 PM

Here is the problem, and I speak with no real knowledge of Judge Kopf's opinions on this matter or his sentencing history: many district judges are confused as to [1] how much discretion they have in sentencing, [2] what the precise role of the 3553(a) factors is, and [3] what deference, if any, is to be given to the Guideline calculation. Here is a quote from a dist. judge in the 2d Circuit:
I can’t explain this decision [i.e., Justice Breyer’s decision in Booker], but at least I came away with a view that I now have discretion. And then I read Crosby and I said, Well, maybe I don’t. Because Judge Newman thought he had a whole set of rules why he shouldn’t depart. That is the whole thrust [of Crosby]: Don’t think you can depart anytime you want to. You don’t have your own preguidelines discretion. That is what he [i.e., Judge Newman] says.
He refers to the 2d Circuit's lead decision post-Booker, US v. Crosby, 397 F3d 95. He is confronted by repeated decisions of the Circuit that speak of the district judge having a wide amount of discretion, as in this quote from US v. Jones, 460 F3d 191:
Although the sentencing judge is obliged to consider all of the sentencing factors outlined in section 3553(a), the judge is not prohibited from including in that consideration the judge’s own sense of what is a fair and just sentence under all the circumstances. That is the historic role of sentencing judges, and it may continue to be exercised, subject to the reviewing court’s ultimate authority to reject any sentence that exceeds the bounds of reasonableness.
And, then observing the Circuit behaving as the other Circuits have - striking below Guideline sentences as "unreasonable" and affirming above Guideline maximums as "reasonable".
Booker was a brilliant decision and a victory for defendants, and the Constitution, but, like many, many other great decisions it apawned as many questions as it answered. One can only hope that the Supremes do not punt and answerthe questions directly and clearly that were certified back in November.

Posted by: Bernie Kleinman | Dec 22, 2006 11:06:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB