The U.S. Sentencing Commission warned in a new report that defendants under the same courthouse roof could be facing a wide range of sentences, depending on who holds the gavel, but experts say the commission may be missing the bigger picture: judges are becoming more lenient.
"That doesn't mean we ought not be more consistent," Douglas A. Berman, a law professor at Ohio State University and co-author of "Sentencing Law and Policy: Cases, Statutes and Guidelines," told Law360 on Thursday. "But as we worry about disparity, I think it's especially important to remember that that disparity has generally been driven by judges aspiring to be more lenient than what are indisputably overly severe guidelines."
On Tuesday the commission released its third report analyzing the long-term impacts on federal sentencing of the Supreme Court's 2005 decision in U.S. v. Booker, which unshackled federal judges from imposing required sentences and gave them much more discretion.
The latest report zeroed in on 30 major American cities, each in a different federal district, to analyze whether judges exercising their discretion within a single courthouse has led to more or less uniformity in sentencing in the 17 years since Booker.
It does not appear among the report's "key findings," but in virtually every single city analyzed in the report, judges imposed sentences that were lower on average than the guideline minimum. Furthermore, the analysis found that average leniency, as compared with the guidelines, had increased in many cities in the years since the Booker decision.
While the report didn't spotlight the general shift toward leniency, it did observe, "In the cases analyzed by the commission for this report, when judges imposed a sentence outside of the guideline range, they departed or varied below the range nearly 21 times as often as they departed or varied above the range." (Emphasis in the original.)
The commission's report measured the average percentage difference between sentences imposed by a judge and the relevant guideline minimums, and mapped them against the average percentage differences of their colleagues over a certain period.
To focus on judicial discretion, the report excluded cases where a statutory minimum penalty was as strict as or stricter than the guideline minimum. The commission also screened out cases in which a court doled out below-minimum sentences for defendants who cooperated with the government or had been part of a "fast track" program.
In one example, an analysis of 24 Chicago federal judges' rulings in 2,951 cases from October 2011 to September 2017 — the third of the three distinct periods since the Booker decision considered by the report — found that the range from the harshest judge to the most lenient was 49.5 percentage points.
But the harshness and leniency of the outlier judges was measured relative to the city's average, not relative to the average guideline minimum.
In other words, the report shows that even the least lenient jurists, or the "most hanging-est of hanging judges," as Berman termed them, are still doling out sentences below the minimums recommended by the guidelines.
For Berman, the report shows "not just growing disparities, but growing disaffinity for overly severe guidelines, as judges felt more and more comfortable and confident sentencing as they think they should."
In Oklahoma City, where the commission analyzed seven judges in the first two periods, 2005-07 and 2007-11, and six judges in 2011-17, the total spread in variation among judges collapsed from 32.1 percentage points in the first period to 6.9 in the latest period.
Over the same three periods, the average difference between sentences imposed and the guideline minimums grew from 1 percent below guidelines in 2005-07, to more than 7 percent below guidelines in 2007-11 and, finally, to more than 19 percent in 2011-17.
In other words, among cases the report analyzed, sentence disparity within Oklahoma City shrank post-Booker, and so did average sentence length.
The report measures disparity in sentencing in terms of both the range of sentences within a city and the standard deviation from the city's average, and finds that both these figures went up in most of the cities analyzed.
The report concludes from these numbers is that "in most cities, the length of a defendant's sentence increasingly depends on which judge in the courthouse is assigned to his or her case."
But it's a conclusion Nora V. Demleitner, a professor of law at Washington and Lee University and editor of the Federal Sentencing Reporter, finds "melodramatic."
The commission's emphasis on spreads and standard deviations "focuses on the concern about uniformity, but doesn't focus so much on ultimate sentence length," said Demleitner, who is another co-author of the "Sentencing Law and Policy" casebook.
Part of the emphasis on disparity may come from the commission's statutory responsibility to examine the issue, as outlined by the Sentencing Reform Act.
The conclusions reached by the commission's latest report echo the first post-Booker report, in 2012, which concluded that "sentencing outcomes increasingly depend[ed] upon the judge to whom the case [was] assigned," and its 2017 follow-up, which focused on demographics and found that black men received on average higher sentences than white men.
Demleitner said that since the Booker decision came down, the commission has been eager to prove that uniformity in sentencing would suffer as a result of increased judicial discretion.
"It seems like since then they've been going out of their way to prove that they were right," she said. "I think even with same data, you could have written a very different conclusion section."
--Editing by Brian Baresch.
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