« "California To Release All Prisoners Who Seem Nice Enough" | Main | "Police Investigate Weiner's Messages to Teenage Girl in Delaware" »

June 10, 2011

"The Slow, Sad Swoon of the Sentencing Suggestions"

The title of this post is the title of this notable new article by (frequent SL&P commentor) William Otis appearing in the June 2011 issue of the Federalist Society's Engage publication. Here is how the piece starts and ends:

The Guidelines are a lost cause.  When they became optional after Booker, the Sentencing Commission lost the central purpose for which Congress established it.  Yet each year it spends more money making suggestions district courts now follow only little more than half the time.  It's time for the Commission to go, and for Congress to re-write the Sentencing Reform Act....

With apologies to Justice Scalia’s Booker dissent, the Commission has assumed all the value of a cookbook listing advisory-only ingredients, but telling the chef to remember that, in the end, he can use pretty much whatever pops into his head.  As the Supreme Court reminded us in Nelson, we are now so far down Booker’s path that district judges cannot so much as presume a Guidelines sentence is reasonable, much less correct, and still less binding.

By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission became an anachronism the day Booker was decided.  In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for sentencing suggestions.

I strongly disagree with Bill's basic premise that the US Sentencing Commission is an anachronism in our world of advisory guidelines after Booker.  In addition to within-guideline sentence still being imposed in 55% of all cases — which was over 45,000 sentencing in Fiscal Year 2010! — the guidelines remain as a central benchmark in the other 45% of the cases (among which a below-guideline sentence is most often urged by a prosecutor to reward cooperation or a super-quick plea).  In other words, even six+ years after Booker, the now-advisory guidelines still control sentencing outcomes in most federal criminal cases and still significantly impact sentencing outcomes in all federal cases.  Suggesting the the guidelines and the agency that controls them are no longer that important just does not jibe with enduring federal sentencing realities.

That said, I strongly agree with a broader theme in Bill's piece here that both the Sentencing Commission's work and the Sentencing Reform Act's terms ought to be subject to significant post-Booker changes.  I especially like this passage/suggestion in this piece:

[I]if the Sentencing Commission is to remain in operation (see subsequent discussion), it should forthwith require of itself a crime-and-cost impact statement setting forth a line-by-line estimate of the real-world consequences any new guideline or policy statement is likely to produce.

It’s too obvious for argument that a government agency, before taking action, ought to understand, as well as disclose to the citizens, what effects its proposals are likely to have on them. For years the law has required environmental impact statements for proposed construction projects, and there is no reason the same principle should not be applied to proposed changes in sentencing. The human environment counts, too.

In particular, the Commission will have to refine and expand its present incarceration estimates. If the Commission proposes a change likely to result in higher sentences, it should study how many more years of imprisonment, in the aggregate, this change would produce and tell the public what it’s going to cost; the day has passed when the taxpayers can foot the bill for every change, even if seemingly desirable.  Similarly, if the Commission proposes a change likely to result in lower sentences (e.g., its recent crack/powder equalization proposal, discussed subsequently), it should produce an estimate of the impact of the resulting additional crime.

Sounds good to me, especially if/when the USSC would put all its analysis on its website for others to see, consider, assess and debate.

June 10, 2011 at 01:05 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "The Slow, Sad Swoon of the Sentencing Suggestions":


Maybe require racial impact statements as well...

Posted by: Paul | Jun 10, 2011 1:49:37 PM

Doug --

Thank you for posting this.

It's true that a (bare) majority of sentences are still within the range, but this is not because of any enduring force of the guidelines per se. It's because the guidelines were modeled to begin with on pre-existing sentencing practices. Thus, if the guidelines disappeared altogether (as opposed to quasi-disappearing by being made advisory), one would expect exactly what we have now, to wit, a return to the pre-guidelines sentencing results.

By far the most important reason Congress established the Commission was to implement determinate sentencing. But determinate sentencing ended with Booker. Very curiously, the Commission has not suggested to Congress that it be restored. Thus we have a Commission operating at ever increasing cost but without doing the principal thing -- publishing binding rules -- it was created to achieve. I just see no evidence that sentencing outcomes would be different from here on in if the Commission vanished tonight. So why, especially in the new age of resource scarcity, are the taxpayers still footing the bill? For all the millions spent, what the Commission publishes are increasingly disregarded sentencing suggestions.

I also want to thank you for permitting me to quote you, and in particular to quote your observations about Spears and Nelson. As you pointed out, SCOTUS took pains in each of those cases to emphasize that sentencing judges cannot so much as presume that a within-range sentence is REASONABLE, much less that it's correct or in any other sense to be preferred to some other sentence. As Justice Stevens noted in his dissent to the remedial portion of Booker, this is the opposite of what Congress intended when it created the Sentencing Commission.

Time to start over.

P.S. Much as I would love to be around for the early responses to the article (such as there may be), I'm leaving for Italy tomorrow in a vain attempt to become cultured. I know it ain't gonna work, but my wife will like the sights, anyway.

Posted by: Bill Otis | Jun 10, 2011 2:39:03 PM

Otis is right, and he should be commended for saying out loud what everybody knows to be true. I also suspect that a significant number of the within-guidelines sentences arise from circumstances where there is an overlap between the statutory mandatory minimum sentence and the guidelines range. In other words, if judges were left to their own devices, an even smaller percentage of cases would be within the USSG sentencing range.

Posted by: Anonymous | Jun 10, 2011 2:53:12 PM

Couple of quick (pre-Italy?) responses, Bill:

1. Enjoy Italy. It is a remarkable country and the three major cities I was to --- Rome, Venice and Florence --- each had a remarkable and spectacular character that is hard not to enjoy. And the pasta and gellato... I am jealous.

2. If you envision just the Commission going away but leaving behind the extant guidelines, I think you are right that things would not change too much right away. But if the guideline book were to suddenly disappear and federal judges nationwide were left only with existing statutory sentencing ranges, I think we would see a dramatic scatter of outcomes, especially in white-collar and drug cases in which (a) defendants would (sensibly?) urge judges to not be too concerned with loss amounts or drug quantities and instead focus on role and character issues and (b) judges would (inevitable?) respond in very different ways to claims that qualitative factors matter more than quantitative ones. (I think there would also be a big scatter on how criminal history gets considered.)

3. I wonder if you also view the US Attorney's Manual as serving no purpose, given that it is merely advice from a central executive body with no binding force or enforcement means. I have long sensed that the USAM, despite its advowedly advisory non-binding posture, still exerts force on both the process and the outcome of prosecutorial decision-making. To the extent this is accurate (and also that you think the general advisory guidance set forth through the USAM is of some value/purpose), is it not also of at least some value/purpose for a central judicial body to set forth sentencing advice for judges even if it lacks binding force? Put even more simplistically, I think there is great value/purpose that flows from my giving advice to my children even when they fail to consistently head it.

4. As I indicated in this post, I share your sense that a post-Booker update of the USSC and the SRA is justified. But I think even a cursory examination of sentencing dynamics in a guideline-less state will help you appreciate that an advisory guideline sentencing system is still much more predictable and orderly than a system without any sentencing rules other than broad statutory ranges. And the fact than neither the Bush or Obama DOJs have come anywhere near to advocating your blow-up-the-current-system approach reinforces my sense that the current system is much more predictable and orderly than many other possible alternatives.

Posted by: Doug B. | Jun 10, 2011 10:08:11 PM

The mandatory sentencing guidelines were followed by a 40% drop in crime across the board. This has to be one the greatest lawyer achievement in history. Because lawyer employment also dropped, the rent seeking elite on the Supreme Court ended them. They do not care about crime victims, only lawyer jobs.

The idea that crime continues to fall has no validation. If based on police reports, the police is motivated to refuse to take reports, throw a lot in the trash, and to cover up crime. Most crime is not reported because it is a waste, and the judicial system is more damaging to the lives of witnesses than the criminals. So the sole valid measure of crime is the household victimization survey. It had excellent methodology, and great validation. The Obama administration has suspended it to improve its methodology. Its methodology needed no improvement. One must conclude the Obama administration wants to cover up the real crime rate to avoid offending its criminal constituency. As bankers are Republicans, criminals are Democrats.

Posted by: Supremacy Claus | Jun 11, 2011 4:55:27 AM

B'lotis got published someplace besides on this blog?


Oh, it was the Federalist Society.

Posted by: Sultan Pepper | Jun 11, 2011 2:21:06 PM

What is the basis for you conclusion that the 40% drop was due to federal guidelines, SC, and not the conspiratorial forces you now say account for continued drops? And, in part because the federal prosecution rate has gone up roughly 200% since the advent of these mandatory guidelines (due mostly to increased drug and immigration prosecution), there is a lot more federal lawyer employment in recent years.

As usual, SC, you mine and/or make-up data to serve your peculiar perspective and then disregard the data that refutes your own suppositions. For one who seems eager to promote science over faith in the law and elsewhere, you showcase that "science" in your form has perhaps even worse and more pernicious biases than does faith.

Posted by: Doug B. | Jun 11, 2011 6:20:12 PM

Prof. Berman: Thank you for asking. I will not burden you with complex statistical analyses.

The mandatory guidelines resulted in the incarceration of many more people. I think we can agree on that effect.

As Bill likes to say, the overwhelming majority are guilty. I would go beyond that and say, they are guilty of hundreds of violent and non-violent crimes each, but not prosecuted for these. If they are in prison, they cannot be elsewhere, in the streets. So the incarceration of one prisoner prevents hundreds of crimes, a year.

This is a study of confidential self-reporting among drug addicts from the time before the guidelines were in effect. You may double the reported number because of poor memory ability while intoxicated, not to mention innumerable mala prohibita.

The day-to-day criminality of heroin addicts in Baltimore: A study in the continuity of offense rates.
Ball, John C.; Shaffer, John W.; Nurco, David N.
Drug and Alcohol Dependence, Vol 12(2), Oct 1983, 119-142. doi: 10.1016/0376-8716(83)90037-6

1. Interviewed 354 adult male heroin addicts to determine opiate history, crime history, and biographical data. The sample was stratified by race and by year of 1st police contact. Five basic measures of criminality were included: crime-day theft, crime-day violence, crime-day dealing, crime-day con games, and crime-day other offenses. A composite crime day incorporated all 5 measures. Yearly crime rates were derived. Results show that Ss committed offenses an average of 255 days/year while free in the community and during addiction years. The start of addiction was associated with a high level of criminality, and the high rate continued over numerous subsequent periods of addiction. Theft of property was the most common type of crime, followed by drug sales, other offenses, con games, and violent offenses. Criminality decreased over successive nonaddiction periods. During non-addiction periods, Ss committed offenses on an average of 65 days/year. It is suggested that drug dependence is a major contributory factor leading to criminality among heroin addicts in the US. (21 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)

Please, call me out on any instance where my views have no empirical basis. I consider that a favor. I am willing to immediately change these views when the facts do not support them.

Posted by: Supremacy Claus | Jun 11, 2011 10:19:22 PM

One may add the drop in the rates after the sentencing guidelines went into wide use was validated by crime victimization household survey. It has great reliability and validity, coming from victims, with no agenda. If anything these surveys represent a small underestimate due to memory loss. These have been suspended by the Obama DOJ for renovation of methodology, when they were already the best in methodology.

See, the drop in crime was real, not just police throwing reports in the trash. Now, no one knows the real crime rate.


Posted by: Supremacy Claus | Jun 11, 2011 10:45:02 PM

I have belabored the point before with Bill on this forum.

First, in lamenting that the guidelines are not being "followed" and blaming Booker, Bill includes all sentences that received a GL departure, including government-sponsored departures. Booker played no role in such sentencing outcomes. And the guidelines are being "followed" when a GL departure is imposed.

I've said it before, but I'll repost here. The reality of the statistics is that only 14% of sentences in FY09 were the result of post-Booker variances – not the 45% figure Bill would imply. (And how many of those 14% can be attributed to guidelines that almost everyone agrees are excessive, such as crack and 2G2.2?) Even the 14% figure is inflated because many of those “variances” would have been “departures” pre-Booker, but the court characterized them as “variances” simply because its safer and easier to do so. Quite simply, Booker is not the bull-in-a-china-shop Bill hopes to convey.

Second, I suspect the reason no major post-Booker reform has been seriously pushed is because people recognize the real limited role Booker has played. Booker allows judges to impose more just sentences when a case warrants it. The guidelines, however, continue to be followed in the vast majority of sentencing hearings.

Third and similarly, the guidelines continue to drive federal sentencing outcomes. If you've been involved and practiced in federal courts over the last 6 years, that is an undeniable conclusion. But the simple and real fact of current federal sentencing practice is that the Guidelines are the driving force of all federal sentences. Plain and simple. Only by engaging in hyperbole -- or by being dis-attached from what is really occurring on the ground -- does Bill try to paint a different picture.

Ultimately, I think Bill's analogy to a cook book is a good one. There is no master chef standing over my shoulder in the kitchen ensuring I follow the ingredients to a tee. Yet I do. Yet most of the time, most people do. And when they stray, it's because the recipe can be improved. That is why the GL continue to be followed. Rightly or wrongly, the judges view them as a cook book that produces, in most cases, a good meal. As a defense attorney, let me assure you how hard it is to convince them otherwise.

Posted by: DEJ | Jun 12, 2011 1:41:33 PM

"the Commission has assumed all the value of a cookbook listing advisory-only ingredients, but telling the chef to remember that, in the end, he can use pretty much whatever pops into his head."

Bill's wife must do all the cooking in their house. The best chefs are in fact creative geniuses who vary their dishes according to their imaginations, seasonal and/or regional ingredients, and personal taste, not bland hacks who merely follow the commands of this or that text written by others.

Posted by: Gritsforbreakfast | Jun 12, 2011 4:07:40 PM

Hey SC, a 30-year-old study that seems to count con games (3-card-monty?) and shoplifting and drug sales as a crime wave does not prove that incarceration of a prison prevents 100 crimes per year that we truly care about. By the same basic measure, because I probably exceed 65 MPH at some point most days I drive to work, locking me up would prevent over 200 crimes per year just on the highways (not to mention all the times each year I park a bit too long in the loading zone).

I do not want to dispute your plausible assertion that imprisonment may better prevent anti-social and/or drug addicted persons from committing violent and serious property crimes than leaving these folks in the general community. But so too might sending them to a distant island to play Survivor or having them serve in Iraq, both of which might cost far less than imprisonment and be more socially productive to boot. In other words, if the sole and singular goal is merely incapacitation, banishment/service in various forms could be of greater utility than prison. And, as James Wilson and other serious scholars are quick to note in response to recent trends, there are forces that go far beyond laws and imprisonment policy that seem to impact criminality considerably.

Though I have an affinity for your utility-focused, number-driven perspective on crime and punishment, your curious and worrisome rants about feminists and rent-seeking always make me suspect concerning which "utiles" and what "numbers" get special attention in your universe, SC.

Posted by: Doug B. | Jun 12, 2011 5:37:07 PM

The behaviors of the subjects of that study were the cause of the public outcry that resulted in the Sentencing Guidelines, so the article covers Ground Zero of the genesis of SG's. That study and several with similar results confirmed and validated the public anger. If you want to mock the study, you will be mocking the fear of millions of violent crime victims of that era.

Without latching onto your example too much. Speeding is a malum prohibitum. It does not generate additional crashes. There is some possibility that removing all traffic rules would decrease accidents by putting all responsibility for safe arrival on the drivers. The rules may themselves be a major factor in crashes. They are certainly massive revenue generators for the government, the judges, and the lawyers on both sides. So they will not go away. I encourage you to dispute every moving traffic violation.

Still, your are breaking arbitrary, unvalidated rules. Most advances in traffic safety are from technology, so I would have little interest, less benefit, and waste a good taxpayer by arresting you for your violations of false laws. I know you like to provoke in a professorial way. However, there is no comparison between speeding and pistol whipping someone to jack their car or grab their purse. Nothing in common, especially in the consequences to the entire neighborhood. So the payoff for incarceration for the FBI Index felonies is massive. If you were to pursue these crimes in torts, and they were worth $10,000 each to prevent or to remedy, you are now talking about $millions/year added to our economy with each incarceration.

Many of the crimes listed are violent crimes. All knock real estate values to below zero. I would not accept money from you to take possession of your house where these criminals are active, let alone buy your house with money. Yet, your inner city house may have the most desirable location close to work downtown. Ironic. Only crime keeps the value suppressed from the highest values to below zero value.

Have you tried to understand the simple version of the rent seeking theory, or that feminism is a Trojan Horse for a business plan of the lawyer enterprise, as the KKK was? Did you verify that KKK lynchings had a robust business plan, and not just hanging kids who whistled at white girls? The word, rant, is an ad hominem. It is not a sufficient answer to one of the most powerful and useful theories of appellate decisions. Personal remarks show frustration in the traverse. Let me know if you wish to restart from the beginning with smaller steps. No math will be involved.

If it were 1911, you not be using ad hominems, but reporting me to the judges that ran the KKK, so I could get the lash to silence me. This enterprise is so powerful and rich, today, it no longer bothers with physical intimidation like that. It controls government, and cannot be removed. It dwarfs all other criminal enterprises in history, by its total control of 99% of the policy decisions of the US government. This is not a conspiracy theory, as you like to demean it. It is cult indoctrination theory, and cult control methodology. The closest analogy to explain it is to call it Inquisition 2.0, where no one considered that the Church could be wrong on fundamentals, not even blasphemers. You are unable to get beyond your indoctrination, despite my strongest effort to pull you from the muck. Here is one simple example. You never, ever mention this. There are 20 million serious crimes a year. There are 2 million prosecutions. If I commit a serious, there is a 90% chance, I will not be disturbed by the criminal justice system. Why have government at all, if it does nothing 90% of the time it is needed? Worse, when people attempt to address crime in self-help, it crushes them, as you documented in your posting on the father who is going to prison for 20 years for threatening a home invader with a gun. Explain that without using the concept of feminism or rent seeking. It is impossible. Maybe the prosecutor was drunk, that would still not be as good an explanation.

Posted by: Supremacy Claus | Jun 12, 2011 10:30:26 PM

@DEJ: You've hit the nail on the head re BOTIS. He's been out of the real world of practice in the federal criminal justice system for so long, he doesn't know what he's talking about (although he sure thinks he does).

@Doug B.: Why do you engage the misogynist troll? It's one thing not to censor a bigot; but to engage him like he's worth responding to? I don't get it.

Posted by: sagebrush | Jun 13, 2011 11:00:37 AM

Sagebrush: Please note who is calling whom bad names in frustration in the traverse. When you do that, you are knocking down your king in a hopeless chess position. Prof. Berman is irritated because he is a cult indoctrination victim reacting to someone from the outside world pointing the ridiculousness of his cult beliefs. Had you lived in 1911, do you think you might be among the millions of KKK members? Dutifully buying your sheets, and attending public lynchings? I think so from your blind adherence to political correctness. That was PC in 1911. Any deviation resulting in a visit from night riders bearing whips, and administering a lashing to any adversary, including white people trying to stand up for core American values.

If you find any factual inaccuracy in any of my comments, you are welcome to point it out. Otherwise, you are just another big government rent seeking running dog, whose economic interest is threatened by any suggestion of people standing up to the biggest, most powerful, most entrenched criminal enterprise in history, the lawyer profession running our government, and utterly failing at every self-stated goal of the law, save one, seeking the rent.

Posted by: Supremacy Claus | Jun 13, 2011 10:08:43 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