The National Pulse

You Say You Want a Revolution

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Patrick Fitzgerald
Photo by Bill Putnam/Bloomberg via Getty

Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.

Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines.

Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”

Five years out, however, Booker has become anything but revolutionary. So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.

“Anytime you have more flexibility in sentencing you’re going to have more disparities,” says University of Missouri law professor Frank Bowman, who served as special counsel to the U.S. Sentencing Commission in the mid-1990s. “Different judges are going to view similar cases differently. It’s human nature.”

For example, in the first three years—contrary to most expectations—the average sentence length for all federal crimes went up slightly each year, from 50.1 months in fiscal year 2004 to 51.1 months in fiscal year 2005, and to 51.8 months in fiscal years 2006 and ’07, according to U.S. Sentencing Commission data.

The rate of downward departures from the guidelines has dropped but the amount was hardly earth-shattering. While the percentage of below-guidelines sentences more than doubled from the pre-Booker days to the period immediately afterward (from 5.5 percent in fiscal year 2003 to nearly 13 percent for the rest of fiscal year 2005), it dropped back down to 12 percent in fiscal years 2006 and 2007.


There are several explanations for why the Booker revolution appears to have fizzled. One is that the guidelines, though advisory, continue to have a significant influence on sentencing. Another is that judges have become so habituated to following the guidelines they find it hard to break the habit. And defense lawyers have failed to take full advantage of the opportunities Booker presented to plead for a lower sentence.

The Supreme Court has kept the jumble going. On Dec. 10, 2007, the court issued two decisions that rejected appellate rules designed to constrain sentencing courts and reinforced the district courts’ sentencing discretion under Booker.

In Kimbrough v. U.S., the court held that judges are free to reject the 100-to-1 ratio in the guidelines between crack and powdered cocaine offenses, which treat one gram of crack as the equivalent of 100 grams of powdered cocaine. In Gall v. U.S., another drug case, the court held that a substantial downward departure from the guidelines need not be justified by a showing of extraordinary circumstances.

Those decisions may have breathed new life into Booker. In fiscal year 2008, the average sentence length for all federal crimes dropped, for the first time in more than a decade, to 49.6 months from 51.8 months in each of the previous two years; and it has dropped even further during the first three quarters of fiscal year 2009, to 47.6 months, commission data shows.

For their part, many federal prosecutors suggest that Booker and its progeny have reintroduced into the federal system the kind of sentencing disparities that led to the creation of the guidelines in the first place.

At a recent series of public hearings around the country by the commission, which is considering amending the guidelines, one prosecutor after another complained about Booker’s chaotic effect on sentencing.

Patrick Fitzgerald, Chicago’s top federal prosecutor, testified at a commission hearing in Chicago last September that about 42 percent of all contested sentences in the Northern District of Illinois between December 2007, when Gall and Kimbrough were decided, and the end of fiscal year 2008 resulted in below-guidelines sentences. That’s more than twice the national average of 19 percent, he said.

Fitzgerald said he wasn’t suggesting all below-guidelines sentences are unreasonable, only that a significant disparity in sentencing between districts appears to be emerging. “The bottom line,” he said, “is that there is an inevitable tradeoff between the discretion afforded individual judges to render justice as they see fit in an individual case and the ability of the judicial system to minimize disparities in the sentencing of similarly situated defendants who appear before different judges in different districts for similar conduct.”

At a Sentencing Commission hearing in Denver last October, Colorado U.S. Attorney David Gaouette said only three of the state’s six district judges routinely follow the guidelines. A fourth judge “sometimes” follows the guidelines, but the two remaining judges do not, he said. One of them even told one of his assistants that the guidelines were “arbitrary” and would not be followed, Gaouette said.

In Oregon, the rate of variances from the guidelines since Booker has been so great that federal prosecutors there have been forced to change their charging and plea bargaining practices, Karin Immergut, then the state’s U.S. attorney, told the commission at a hearing at Stanford Law School last May.

Yet some say that when the dust settles, district judges may finally start to embrace their relatively newfound freedom to depart from the guidelines as they see fit. Many critics say the guidelines imposed sentences that were unduly harsh on low-level crack cocaine charges, child pornography downloading cases and high-loss white-collar crimes.

“Having all crack offenders sentenced to often unjust sentences before Booker may be much worse than having some—but not all—crack offenders now getting different and sometimes more just sentences after Booker,” says Ohio State University law professor Doug Berman, who writes a blog on sentencing law and policy.

But Berman says the fault lies less with judges than with Congress for not reforming the system after Booker, the Sentencing Commission for not revising the most unsound guidelines, the Supreme Court and the appellate courts for taking a highly proceduralized view of what constitutes a “reasonable” sentence, and the Justice Department for not urging Congress or the commission to do better.


The results of a yet-unpublished study appear to bolster such claims. The study, based on an analysis of sentencing patterns by 10 district judges in Boston between 2002 and ’08, suggests a modest but clear increase in “interjudge disparities”—differences in sentences based solely on the preferences and biases of the sentencing judge—since Booker. (A short version of the study will appear in the Federal Sentencing Reporter.)

Four of the 10 judges in the study followed what the author calls a “free at last” sentencing pattern, one characterized by a low rate of below-guidelines sentences prior to Booker and a much higher rate of below-guidelines sentences since. Sentences by three other judges fit a “business as usual” pattern, with very little change between periods. One judge’s sentences fell into a “return to form” pattern, marked by a high rate of below-guidelines sentences prior to Booker and a high rate of below-guidelines sentences since. (One judge’s sentences fit no distinct pattern. The other judge’s sentencing practices fluctuated wildly.)

Indiana University law professor Ryan Scott, who conducted the study, finds the results troubling. “It seems to suggest,” he says, “that the sentence a defendant gets has a lot to do with the judge who is doing the sentencing.”

But others caution against reading too much into the findings, which are based on a small sample of judges in one of the most liberal, least-guideline-adherent districts in the country. “It’s not exactly representative of the system as a whole,” says Bowman, who says regional disparities in sentencing have always existed.

The commission, which wrapped up a series of seven regional public hearings on the guidelines in Phoenix in January, has laid out a rather ambitious set of policy priorities for the current amendment cycle, including an evaluation of the effects of Booker and its progeny on federal sentencing policy, a study of mandatory minimums and a review of the cocaine and child pornography guidelines. The commission must submit any proposed changes in the guidelines to Congress by May 1. Those changes will take effect on Nov. 1 unless Congress takes action to reject or modify them.

But some experts aren’t optimistic about the prospects for meaningful federal sentencing reform anytime soon, particularly at the hands of the commission.

“Making amendments to advisory guidelines doesn’t attract as much interest or attention as it did when they were mandatory,” says Loyola University Chicago law school dean David Yellen, who has written extensively about the guidelines. “Though the guidelines are still in place, a lot of judges just do what they want to now, especially in white-collar cases, where the sentences have been all over the place.”

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