The Real Cost of Prisons Weblog

Although the U.S. Sentencing Commission published a report this week, indicating that not much has changed in the federal sentencing system since Booker, Rep. Sensenbrenner believes that the advisory guidelines give judges too much discretion to hand out sentences below the guidelines. At a press conference on Wednesday, March 15, he said: "Unrestrained judicial discretion has …jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law." The Sentencing Commission's report actually found that federal defendants are getting slightly longer prison sentences since the Booker decision, and that judges are by and large following the sentencing guidelines, as they did before the Supreme Court's decision in January 2005. In fact, the Booker report found that in nearly nine of the cases cited, the judge sentenced defendants within the guideline range, or sentenced them below the range because the prosecutor asked the court to do so, or gave them a sentence harsher than the guideline sentence.

Facts from the report: Not much has changed

About 67,000 people were sentenced over the past year to an average 58 months in prison, compared with 57 months from the previous year. Sentences increased in length since Booker.
Before Booker, judges sentenced inside the guideline range a little over 90 percent of the time. Since Booker, judges have been sentencing within the guideline range 85.9 percent of the time. This represents a mere 5 percent increase in below guideline sentences since Booker.
Since Booker, the government sponsored downward departures in twice as many cases as defense sponsored departures. The government sponsored departures in 23.7 percent of all cases in the year following Booker, an increase over past years. This past year, judges sentenced below the guideline range in only 12.5 percent of cases.
If the government disagrees with the judge about a below guideline sentence, they can appeal and occasionally they do. The courts have reversed 15 below guideline sentences and affirmed only six.
There is still lots to learn, including how the courts of appeals will treat other government appeals of below guideline sentences, and gaining a better understanding of why judges are departing below the guidelines in some cases. We have a lot to do to educate ourselves and Congress about why judicial discretion is important.

Is there a need for more legislation?

Rep. Sensenbrenner said at a news conference Wednesday that House Republicans are contemplating several pieces of legislation to rein in what he said were lenient judges, but it will be months before a proposal is drafted and introduced. The Department of Justice told the Congress at hearings on Thursday, March 16 that they want mandatory minimum guidelines. (Click here to read testimony of witnesses.) We think such a fix is unnecessary, ill-advised, and probably unconstitutional. Moreover, we believe the courts of appeals should be given a chance to address government concerns about below guideline sentences. There just has not been enough time to permit appeals to make their ways through the courts and make their effects felt on the system.