Federal Sentencing Trends post-Booker

More than five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.


Judges are attempting to comprehend the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.


Instead of eliminating the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.


There has clearly been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker.


The percentage also declined in both of the intervening years, to 60.8 percent in 2007 and 59.4 in 2008.


It seems that nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.  The 3rd Circuit averaged 46 percent with the lowest rate the Eastern District of Pennsylvania's 37.9 and the highest, the 68.6 in the Virgin Islands.


When judges stray from the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.


Judges around  the country were most likely adhere to the guidelines for simple possession drug cases (90 percent), burglaries (83.3) and prison offenses (70.8). They were least inclined to do so where the offense was kidnapping or hostage taking (31.7), national defense (33.3) and bribery (35.7).


Since Booker, the Court has held that when an appeals court reviews a sentence, it is limited to deciding only whether it was reasonable.  A sentencing court must fully explain its reasons for sizable downward departures.


Douglas Berman, a law professor from Ohio State University's Moritz College of Law and the author of the Sentencing Law and Policy blog, says the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.