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July 11, 2010

Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission

A very kind reader sent me a copy of the letter sent by the Justice Department's Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines. This letter can be downloaded below, and here is the letter general assessment of post-Booker realities:

More than five years after the Supreme Court's decision in Booker v. United States, 543 U.S. 220 (2005), Sentencing Commission data — and our prosecutors' experience in federal courts across the country — suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.  On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines.  This regime includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders and most offenses.  It also includes cases involving crimes for which sentences are largely determined by mandatory minimum sentencing statutes.  These crimes include many drug trafficking offenses and certain violent and gun offenses.

On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines.  This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender.  It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges.  These ooffense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.

We are concerned by this evolution of federal sentencing into two separate regimes for several reasons.  First, we think it leads to unwarranted sentencing disparities.  More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing.  Scholarly studies are now beginning to reinforce these reports.  This is extremely problematic.  In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly.  This was the foundational principle of the Sentencing Reform Act of 1984.  We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.

Second, we think the existence of these dichotomous regimes will, over time, breed disrespect for the federal courts.  Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low.  To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice willl be compromised.

Third, we think certainty in sentencing is critical to reducing crime rates further and deterring future criminal conduct, but the current trends are towards less certainty.  We have experienced dramatic reductions in crime rates over the past 20 years, and our collective goal should be to continue on this path in the most just way possible for years to come.  The Sentencing Commission has an important role to play, and it includes ensuring that both certainty of punishment and equal justice in sentencing are achieved by the federal courts.

For all these reasons and more, we believe the Commission, in the 2010-2011 amendment year, should prepare a comprehensive report on the state of federal sentencing that rèviews these issues and concerns.  While we applaud the Commission for its continuing and valuable data releases over the last five years, we are disappointed that there has been no systemic analysis of federal sentencing since the Final Report on the Impact of United States v. Booker on Federal Sentencing, released in March 2006.  Since that Report, Commission data have revealed troubling sentencing trends emerging across the country where, for example, certain districts are experiencing substantially higher departure and variance rates — and other districts substantially lower rates — than the national average.  Federal sentencing has undergone a series of constitutional shocks, the full ramifications of which the Commission ought to explore and report.  The Commission's regional hearings and data releases have been important contributions to all those concerned about the impact of Booker on federal sentencing policy and practice.  But we think more is needed.

We continue to urge the Commission to explore new ways of analyzing federal sentencing data in order to understand federal sentencing outcomes better, identify any unwarranted sentencing disparities, and determine whether the purposes of sentencing are being met.  But most importantly, we urge the Commission to synthesize all of the information it has collected and to issue a report on the state of federal sentencing.  We think the report should also layout a way forward to address systemic concerns and ensure that the principles of sentencing reform — predictability, elimination of unwarranted disparity, and justice — are achieved. Going forward, the Commission should explore how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public.

We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary.  These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses.

Download Annual_Letter_2010_FINAL_062810

July 11, 2010 at 09:45 PM | Permalink


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The Commission must assess and address the effect of the plea bargain. It settles over 95% of charges. The pressure is on both sides to avoid a trial. It is uncertain in which direction the bias takes takes place. The prosecutor overcharges vs only leniency will be acceptable to the defendant. It is certain, the plea is outcome based, and the eventual official charge may be unrelated to the crime if it results in a sentence acceptable to both sides. So a home invading rape by a stranger may become a breaking and entering or criminal trespass. Arson may become vandalism.

If the Commission cares about crime reduction, it must not rely on official counts of official charges. We do not really care about reducing criminal trespass. We sure want to reduce home invading rapes. The Sentencing guidelines were enacted to prevent the bias toward leniency in the plea game. It did, as evidenced by the incarceration rates. Did crime get reduced. It sure did by 40% across the board, a monumental lawyer achievement. Did lawyer employment suffer? It sure did, as evidenced by the job prospect for most grads. Will the Commission have enough integrity to choose the public interest in low crime rates over lawyer special interest in more jobs by raising the crime rate again?

Posted by: Supremacy Claus | Jul 12, 2010 6:55:06 AM

Yes, it's horrible that sentences are no longer primarily the product of the prosecutor's discretion. No longer are judges entirely hamstrung by which crime the prosecutor chooses to bring, whether the prosecutor chooses to charge an enhanced penalty, whether the prosecutor will give you the third point for acceptance, or if the prosecutor will give you fast track. All very sad indeed. Clearly -- clearly -- giving a lone prosecutor unchecked discretion does not distort any coherence the sentencing system otherwise would have had.

Posted by: FPD | Jul 12, 2010 10:06:46 AM

Thank you, FPD, for saying so well exactly what I was thinking as I read this rambling tantrum from Prosecution Central.

Celiain? Jesus!

Posted by: John K | Jul 12, 2010 10:38:04 AM

I don't understand.

DOJ writes that "[w]e have experienced dramatic reductions in crime rates over the past 20 years," yet our prisons are still full and are not emptying.

Something does not compute.

Posted by: Allan | Jul 12, 2010 11:20:55 AM

Allan, maybe it is BECAUSE the jails are overcrowded with law violators that the rest of us out on the streets are safer. In other words, the mass incarceration is keeping a lot of the criminals off the street thus driving down the crime rate (one theory). As for FPD, from your vantage point things may have gotten better, but the system seems to be good for white citizens, as white offenders appear to be the only offenders who get breaks. If you commit child pornography offenses or white collar fraud offenses, the white judiciary has no problem giving a low sentence, which are, ironically, offenses committed by white males. FPD and other like people seem to have no problems with the growing disparity between white and black offenders since Booker and that is troublesome. Discretion at the expense of disparity is good for no one.

Posted by: anon | Jul 12, 2010 11:52:47 AM

"certain frauds involving high loss amounts" -- does anyone have any data on this? Did the DoJ give an analysis? After Madoff, it seems that many judges are sentencing OVER the Guidelines. Facts?

Posted by: Mark Pickrell | Jul 12, 2010 12:20:49 PM

Seeing the glass as perhaps half-full rather than half-empty, I think DOJ's letter is a call to reduce the child porn and/or fraud guidelines. Which would be a good thing.

Posted by: another FPD | Jul 12, 2010 12:27:56 PM

It's difficult to understand what they are asking for. The word hubris comes to mind. Currently, there is not consistency in sentencing because there is not consistency in charging. It looked as if most of the concerns were centered around downward departures.

Sentencing issues in the US confound our allies. Polanski's extradition was denied today.

Posted by: beth | Jul 12, 2010 12:54:58 PM

@Mark Pickrell, fraud gets charged a lot, but we only hear about the big cases, like Madoff.

The problem with the guidelines is they over-emphasize the loss calculation, even though the loss is often very difficult to calculate, especially in cases involving publicly traded securities. If the loss is high enough, it completely trumps other elements of the offense, such as whether the defendant played a major or a minor role. Madoff was an unusual case, in that he was indisputably the central figure, and by any measure the loss amount was off the charts.

The child porn guidelines have a similar problem, in that the number of images tends to dominate the guideline calculation, completely overwhelming every other factor.

Posted by: Marc Shepherd | Jul 12, 2010 3:22:14 PM

"More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant's sentence wil largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse wil conduct the sentencing."

No sh*t Sherlock! It takes a study to find that out?

Posted by: Federale | Jul 12, 2010 3:50:44 PM

Strategically, I'm not too impressed with a DOJ position that views deviations from the guidelines as more or less per se unreasonable. Their premise that it shouldn't matter which judge you are assigned to demeans the role that judges play in the process, and presumes that the courts are simply a factory in which judges are merely unthinking cogs. The DOJ seems to be asking for what it knows it can't get, legally binding guidelines.

I'm also not impressed with their "bold" call for "a study" when the DOJ surely already has firm opinions on what it wants and what is going on in the system. The DOJ is not an actor with insufficient information about how the Guidelines are being applied or what could be done to make them work better. By asking for information that it doesn't need, the DOJ is basically taking the view that changes will almost surely be not to its liking and trying to postpone the day of reckoning. Would it be so radical for the DOJ, on behalf of the administration, to provide constructive substantive input that is more than hot air?

The most useful point of the letter is its acknowledgment that there are "guidelines that have lost the backing of a large part of the judiciary," and that this situation is untenable. Once the DOJ acknowledges that post-Booker, it is judges and not Sentencing Commission members who have to be convinced that a particular statutorily authorized sentences is the one that should be used, the DOJ will be on the road to more constructive engagement with the issue.

Failing to acknowledge that judges have good cause for deviating from the guidelines or are somehow doing something wrong when they do so is to defy the binding precedents of the U.S. Supreme Court.

Posted by: ohwilleke | Jul 12, 2010 5:02:59 PM

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Posted by: Steven Yoon | Aug 17, 2010 12:37:46 PM

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