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February 2006

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This article is in the news archives --- for current news go to the Third Branch News.


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 few weeks.

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. Washington.

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 guideline ranges.

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 percent.

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 organization.”

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 sentences.”

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 Blakely ruling.

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 2002).

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 federal sentencing.

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 guidelines.

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 offenders.

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 said.

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.