New law review article on post-Booker disparity makes headlines in Boston

This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts.  The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look."  Here are excerpts from the Globe coverage:

Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week.  The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.  "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.

Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name.  But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges."  He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."

The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote.  The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.

Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.

Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months.  But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....

Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study.  But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said.  Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.

Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....

The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one.  But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.

Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months.  "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.

Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission.  The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination.  The full Senate is expected to vote shortly.

Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study.  Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.

Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system.  We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights.  Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths.  Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.