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June 1, 2010

New district court sentencing data now available from the USSC

The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Second Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)

The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases.   (Figures A and B and Table 4 show these long-term trends most clearly.)

Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments.  Interestingly, these latest numbers continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.

June 1, 2010 at 04:14 PM | Permalink


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Main Justice quoted you.

Posted by: JC | Jun 1, 2010 6:30:10 PM

While encouraging, I think it is interesting to compare statistics starting prior to the PROTECT Act, after the PROTECT Act and then post-Booker. Sentences are only marginally different today compared to prior to the PROTECT Act. Thus, Booker merely reversed the PROTECT Act's barbarian restrictions on downward departures. In our district oftentimes there is no written sentence memo. So, when the Government motions for a 5k reduction, the sentence reads like a below guideline sentence but omits "on government motion".

There is a little reamrk in Rita that is often overlooked. To paraphrase, if courts actually sentence based on the parsimony provision, guideline sentences will not be the norm. Judge Pratt seized upon this in his testimony before the Sentencign Commission in Denver, and he is right. Yet these statisitcs tell us that 5 1/2 years post Booker the guidelines are still the norm.

what is to blame? District courts staying true to past practice or not wanting to engage in meaningful thought and individual consideration as required by Gall; appellate court abetting that thinking and not providing strict guidance to trial courts to raise the bar; the DOJ always arguing for guidline sentences thus encouraging district courts to betray their oaths and Supreme Court precedent by not sentencing according to parsimony; and poor defense sentencing advocacy.

although encouraging, these statistics show that we still need to get (much) better

Posted by: bryan | Jun 1, 2010 6:50:05 PM

Pre-PROTECT Act, there were significant variations across the country in the number of cases sentenced outside the guidelines range. Part of the rationale for the PROTECT Act was that these variations could not be explained away by material differences among the cases. Serious observers saw this as evidence of unwarranted sentencing disparities, based on the accident of geography (or even which judge was drawn), rather than upon the facts of the individual cases. Whether or not one agrees with the policy choices reflected in the guidelines, which I see as a separate issue, a cursory review of these statitics shows large variations based on region or even district within a circuit. Anecdotal evidence suggests that the same happens within individual federal courthouses. Presumably, at some point in the future, this condition will be troubling enough to policy-makers that some new system will be designed.

Also, based on my own experiences, it seems that at least some judges are willing to grant departures variances of a much greater extent than pre-Booker (and, indeed, pre-PROTECT Act). I'd be interested in seeing a more detailed analysis of this trend, rather than focusing on with percentage within and not within the USSG range. Obviously, a judge given to granting, say, 50% variances is a lot more likely to cause disparities than one who tends to limit the variances to 10%.

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