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A Year After Booker: Most Sentences Still Within Guidelines
At the one-year anniversary of a key Supreme Court decision, federal courts
continue to punish more than 60 percent of convicted criminals within guidelines
set by the U.S. Sentencing Commission (USSC).
On January 12, 2005, the Supreme Court ruled in the consolidated cases of
U.S. v. Booker and U.S. v. Fanfan that the sentencing
guidelines cannot be mandatory. Since then, the USSC has been collecting and
analyzing case information on a real-time basis and releasing its findings every
Analysis of 54,624 cases submitted to the USSC between January 13, 2005, and
December 21, 2005, indicates that 61.2 percent of all federal sentences in that
time frame have been within the applicable guideline range.
“The data show that sentencing practices have not changed substantially.
There is some variation in some cases, but it’s a matter of several percentage
points,” said U.S. District Judge Paul Cassell (D. Utah), chair of the Judicial
Conference Committee on Criminal Law.
“The question is ‘What explains all that?’ I think what’s going on is that
trial judges around the country have grown used to operating in a guidelines
system,” Cassell said. “It’s the coin of the realm, if you will. The guidelines,
although advisory, provide a starting point. We’ve had almost 20 years of
experience with the guidelines.”
The percentage of federal sentences within guideline ranges remained fairly
constant in the year following the Booker decision, consistently a bit
lower than the 64 percent in fiscal year 2001; 65 percent in FY 2002; 69.4
percent in FY 2003; and 72.2 percent in that period of fiscal year 2004 before
the Supreme Court issued a precursor ruling in Blakley v.
Most departures from the guidelines since Booker—24.4 percent of all
cases submitted—were requested by prosecutors for defendants who provided
substantial assistance or for other reasons. By comparison, downward departures
sought by prosecutors in FY 2003 comprised 22.2 percent of all cases.
In the year since Booker, the four most frequently applied primary
guidelines showed considerable variation in the percentage of cases within
Sentences meted out for those convicted of drug trafficking were within the
guideline range in 53.6 of the cases; for immigration offenses, 56.1 percent;
for firearms convictions, 69.9 percent; and for theft and fraud, 70.7
Asked about that variation, Cassell said, “There are some categories in which
substantial assistance is on the table more often, such as in drug-trafficking
cases. Prosecutors often are willing to recommend a downward departure in return
for information leading them to someone higher in the criminal
The post-Booker statistics on downward departures requested by
prosecutors bear out Cassell’s explanation. Government lawyers sought sentences
more lenient than the guidelines in 32.9 percent of drug-trafficking cases and
33.1 percent of unlawful entry immigration cases, but in only 12.5 percent of
firearms cases and 12 percent of theft and fraud cases.
“Judicial complaints about the rigidity, complexity, and harshness of the
federal sentencing guidelines were legion before Booker,” Douglas
Berman, an Ohio State University law professor and sentencing law expert, wrote
recently. “One might have thus expected a radical transformation of federal
sentencing after the Supreme Court recast the guidelines from stern mandates to
simple advice. But a year later, as revealed by numerous district and circuit
court opinions and cumulative post-Booker data, the conversion of the
guidelines from mandatory to advisory has not significantly altered the central
features of federal sentencing.”
He added, “We still see the federal sentencing system exceedingly focused on
guideline calculations based on judicial fact finding. Most sentences are still
imposed within the (now advisory) guideline ranges. Long terms of imprisonment
for most offenders remain the norm.”
U.S. District Judge Lynn Adelman (E.D. Wis.) and his law clerk Jon Deitrich
wrote in a recent opinion column for a legal publication that the
Booker ruling has improved the sentencing process.
“Booker has brought us rules moderated by mercy,” they wrote.
“Judges are now better able to consider the offense, the offender, and the needs
of crime victims in determining the appropriate sentences. At the same time, the
burden on judges to explain their sentencing decisions is significant, and
that’s fair, too.”
The column added: “Booker enables judges to impose sentences
appropriate to the specific offenses and individuals who appear before them. In
doing so, Booker recognizes that no code can fully account for all the
factors that should affect a sentence.
“But Booker also imposes constraints on judicial discretion. By
leaving the guidelines intact and directing courts to consult them,
Booker provides an objective marker against which to measure
Nationwide, the average length of all prison sentences handed down since the
Booker decision has been 56 months. That is a bit longer than the
average prison sentences for all cases reported to the USSC for fiscal years
2000 (50 months), 2001 (50 months), 2002 (51 months) and 2003 (52 months). It is
the exact length of average sentences for that period of FY 2004 before the
Likewise, the average sentence imposed for the most frequently applied
guidelines nationwide remained relatively consistent post-Booker.
The average prison sentence for drug-trafficking crimes since Booker
was 83 months, compared to an identical 83 months in pre-Blakely FY
2004, 77 months in fiscal year 2003, and 71 months in FY 2002. For immigration
crimes, the average prison sentence has been 27 months since Booker,
compared to 29 months in pre-Blakely FY 2004, 28 months in FY 2003, and
30 months in FY 2002.
Consistency, and even a slight upward trend, is evident, too, in the average
length of sentences for firearms offenses (58 months since Booker, 59
months in pre-Blakely FY 2004, 56 months in FY 2003, and 53 months in
FY 2002) and for theft and fraud (21 months since Booker, 19 months in
pre-Booker FY 2004, 16 months in FY 2003, and 16 months in FY
The USSC, created in 1984 by Congress as an independent agency within the
Judiciary, plans to release a report this spring on Booker’s impact on
In an interview published in the December issue of The Third Branch,
Judge Ricardo H. Hinojosa (S.D. Tex.), chair of the USSC, said the Commission
will “continue to closely monitor post-Booker issues.”
He said the USSC “is dedicated to its mission to carry out the goals of
sentencing reform and, as the Booker decision itself says, ‘to provide
certainty and fairness in meeting the purposes of sentencing while avoiding
unwarranted disparities . . . (and) maintaining sufficient flexibility to permit
individualized sentences when warranted.’”
A recent National Center for State Courts publication, “Future Trends in
State Courts 2005,” noted that “tough on crime” prison sentences in state courts
also have grown longer in recent years.
“As states face the high costs of incarceration, politicians (liberals and
conservatives alike) will increasingly stress a ‘smart-on-crime’ approach . . .
Prison construction will slow during the coming decade, as competing budget
priorities intervene. Prison-building moratorium projects, such as those in New
York and California, are likely to grow,” the publication predicted.
“Courts are likely to face conflicting demands on sentencing. Budget concerns
may result in an interest in less-severe or alternative sentencing, while
mandatory sentencing laws continue to restrict sentencing flexibility in many
jurisdictions,” the publication said.
Although Congress reacted swiftly to the Supreme Court’s decision in
Booker, no new law has been enacted regarding the sentencing
However, a bill, Defending America’s Most Vulnerable: Safe Access to Drug
Treatment and Child Protection Act of 2005, was introduced in the House. It
would essentially convert the bottom of the advisory sentencing guideline ranges
into mandatory minimums, directly amend the sentencing guidelines, and narrow
the application of the “safety valve” that allows judges to apply the guidelines
instead of mandatory minimums in cases of certain first-time, non-violent drug
A letter relating the views of the Judicial Conference on the legislation was
transmitted by Judge Sim Lake (S.D. Tex.), then-chair of the Conference’s
Criminal Law Committee, to the House Judiciary Committee on April 25, 2005.
“The Judicial Conference has . . . historically opposed direct congressional
amendment of the sentencing guidelines because such amendments undermine the
basic premise underlying the establishment of the Sentencing Commission—that an
independent body of experts appointed by the President and confirmed by the
Senate, operating with the benefit of the views of interested members of the
public, is best suited to develop and refine such guidelines,” the letter
The House did not vote on the bill, and the Senate Judiciary Committee has
not yet taken up the issue.
Congress, however, has directed the Administrative Office to report to the
House and Senate Committees on Appropriations on the Booker decision’s
impact as part of a call for “all new trends in caseload changes” brought about
by various new laws and developments.