Calls for Probe of Federal Sentencing Patterns

Marcia Coyle's National Law Journal article, yesterday morning, has covered a few bases in the legal community's blogsphere, but we're referencing it, too, because of its foreshadowings.

"..widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice," Coyle’s article begins. "The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.

"The department called for a 'comprehensive review' of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data 'suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.'

"If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. '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,' said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report."

The two "regimes," Coyle reports, are comprised of "judges following the guidelines closely for most offenses, many of which require mandatory minimum sentences," in one camp, and those "judges regularly impose sentences outside of the guidelines, regardless of the nature of the offense," in the other.

The Justice Department in its report essentially said the disparity problem is apparent enough that the commission has an obligation to look into it, according to Douglas Berman of Ohio State University Michael E. Moritz College of Law. "I think they recognize that, with a fairly lenient-leaning commission, they sometimes won't love the outcome, but they see the benefit of having rules everybody respects."


Related, Prof. Bergman yesterday wrote of an "intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply 'Booker Reconsidered.'"

"I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the 'division of institutional responsibilities' in his analysis," Bergman said, "but I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Booker and federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.

"And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the 'wrong reasons' are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases."


Finally, as part of its "Notice of Proposed Priorities & Request for Public Comment," yesterday morning, the Sentencing Commission's statement includes "Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which United States v. Booker, 543U.S. 220 (2005), and subsequent Supreme Court decisions have affected Federal sentencing practices, the appellate review of those practices, and the role of the Federal sentencing guidelines."

"The Commission," the announcement continues, "anticipates that it will issue a report with respect to its findings, possibly including (A) an evaluation of the impact of those decisions on the Federal sentencing guideline system; (B) development of recommendations for legislation regarding Federal sentencing policy; (C) an evaluation of the appellate standard of review applicable to post-Booker Federal sentencing decisions; and (D) possible consideration of amendments to the Federal sentencing guidelines. Such findings will be informed by the testimony received at seven regional public hearings the Commission held in 2009–2010, feedback received from the judiciary contained in the Results of Survey of United States District Judges January 2010 through March 2010 issued in June 2010, and other information and input."

Public comment to the notice should be received on or before August 18, 2010, and sent to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2–500,South Lobby, Washington, DC 20002– 8002, Attention: Public Affairs—Priorities Comment.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone: (202) 502–4597.