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January 12, 2009

Should we celebrate Booker's fourth birthday?

After a day on the road, I return to e-mail with a friendly reminder from a friendly reader that four years ago today the Supreme Court handed down Booker and converted the federal sentencing guidelines from mandates to advice.  This same reader also sent along these questions:

Four years on, Professor Berman, and how "effectively advisory" are those guidelines?

How healthy is that Sixth Amendment jury buffer?

January 12, 2009 at 09:22 PM | Permalink

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Comments

Sentencing statistics since Booker was decided show that the opinion making the Guidelines permissive (or advisory) instead of mandatory has made relatively little difference in the ultimate results. Prior to Boooker, about 65% of all Federal sentences were within the Guidelines. The vast majority (about 32%) of the other 35%, below Guidelines sentences, were based upon Government motions for a downward departure because the defendants had provided "substantial assistance" to the Government, pursuant to Rule 35 and U.S.S.G. section 5K1. Since Booker was decided four years ago, about 62.5% of all Federal sentences are within the Guidelines, with about 32% of the departures still based upon Government motions arising from cooperation. Thus, the net change appears to be only about a 2-3% varaince from what the Guidelines "suggest". If we are to have Judges be Judges and evaluate each case on its merits, within their evaluation of the facts and judgment, we must do away with the Guidelines completely. Frequently there are good reasons for disparities in sentencing for the same crime.

Posted by: Jim Gormley | Jan 12, 2009 9:48:43 PM

Jim. I hear what you are saying but the issue is one of legal culture. You can't expect judges to change their whole way of approaching sentencing law at the drop of the hat just because Booker said so. That's not realistic. Judges have been using the guidelines in one form or another for at least 20 years. That's an entire generation of judges.

If 10-15 years down the line your stats hold up, then I'd think additional steps would need to be taken. To me, you stats don't show anything wrong with Booker. They just illustrate the inherently conservative nature of the federal judiciary. It changes slowly.

Posted by: Daniel | Jan 12, 2009 10:38:24 PM

Daniel: Regrettably, I agree with you that the Federal judiciary is inherently conservative [particularly after the First (George H.W.) and Second (George W.) Bush Presidenices], so it adapts and changes much more slowly than I would prefer. I believe there are systemic problems that require wholesale overhaul, but that is unlikely any time soon at the Federal level. It would be a major change, for example, for the U.S.S.C. or Congress to do away with the use of acquitted conduct at sentencing. Despite the intellectual justification that the burdens of proof for the jury and the judge are different, most people (both lawyers and lay people) think the use of acquitted conduct to enhance a sentence fundamentally violates the spirit of the Sixth Amendment and the American way. I do think, however, we are on the verge of seeing major changes at the state levels because of severe budget problems. Also, there are bigger problems inside the Bureau of Prisons than are generaly known, particularly in paying the health care costs of older inmates. I understand the B.O.P. may have exceeded its fiscal 2008 budget by as much as $300 million, but there is no public discussion of it. Also, there is a huge need for many more half-way houses and transition programs to bring former inmates back into society as full citizens, so that they don't violate supervised release, probation or parole, or commit new crimes and revolve back into the system. There are now 625,000 people per year (this year and every year into the foreseeable future) being released from jail and/or state or federal prison, but many (30% to 55%) will end up back in the system within 2 years. For a country that prides itself as being the pillar of freedom and liberty on earth, this is hypocracy. Something has to change.

Posted by: Jim Gormley | Jan 13, 2009 8:38:18 AM

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