The United States Sentencing Commission has given Doug Berman at Sentencing Law & Policy, an exclusive on its latest findings in the post-Gall world of sentencing. Opening with a bizarre homage to Bugs Bunny’s nemesis, Elmer Fudd, Berman provides a list of his takeaways:
[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.
[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.
[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.
[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.
[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.
[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
[8] Prosecutorial practices have contributed to disparities in federal sentencing.
[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.
[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.
[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.
What is fascinating about the Sentencing Commission’s perspective on its own existence is its inherent fixation on its own raison d’être, particularly reflected in number 2, and its production of the outcome in number 1 above.
The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
Is this a good thing? Are we winning the race against tyrannies everywhere? Does the Bureau of Prison’s hand out “we are number 1” sponge fingers? By noting this off the top, the USSC seems to see this as a feature rather than a bug of its guidelines, that they contribute to the United States of America being the land of the incarcerated rather than the land of the free.
After all, if they concept of homogenizing offenses so that they can be sentenced by grid was sound, and was mandatory for a generation before becoming advisory, and yet still remaining the starting point for most sentences and “significantly influencing” sentences, then the efficacy of the model should produce fewer prisoners, not more. If they worked, they would deter people from committing crime. Instead,
The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
The number hasn’t decreased. It hasn’t even remained stable. It has “substantially increased.” When the number of federal offenders is substantially greater than it was before, there is a clear take-away: You are doing something very wrong.
On the other side, the USSC notes that things are changing (despite its claim that they are very much staying the same) because
For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
Forget the caveat, which has no business being included in the finding as it’s both obvious and uninformative. There is a message in this finding to the USSC which, though noted statistically, doesn’t appear to be adequately processed: The judges on the ground think your guidelines suck. On their own (non-govermental sponsored below range sentences), judges are rejecting what the guidelines tell them is the “proper” sentence for an offense and going 40% below.
Forty percent! That’s huge. And these aren’t lily-livered, soft-on-crime, wild-eyed liberal criminal lovers. These are United States District Court Judges. These are those very stern guys and gals who were voted “Most Likely to Never Know A Poor Person” in high school. And even they think the guidelines are absurdly harsh.
Despite the turgid language and apparent lack of introspection, the “legal market” is sending a message to the USSC that it’s not buying what they’re selling. This should be cause for some celebration, as the world of federal sentencing is showing signs of returning to a state where individualized sentencing is more important than calculations of points.
But the problem, as was made clear in Judge John Gleeson’s recent memo about the drug guidelines, that the guidelines as a starting point remains a fiction that is unworthy of the dead trees upon which it is printed. To the extent the guidelines serve to inform judges of a starting point in the consideration of sentences, we continue to perpetuate this myth, this fiction of empirical sentencing based upon offense conduct without regard to the plethora of facts and circumstances that comprise conduct that requires imprisonment.
And that is why this conclusion should remain the most disturbing:
The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
As long as that remains the case, we have failed and continue to fail. The point is to reduce crime, not “substantially” increase the number of prisoners. We have failed, and there doesn’t appear to be anyone at the USSC who appreciates it.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I’d be interested to see a modern study showing that any particular sentence has any deterrent effect whatsoever. If the goal is deterring crime, I’d venture to say that all sentencing fails at it. (Except very generally, and in the aggregate.)
If the goal is simply removing from society those who have committed a crime, they’re doing a bang-up job.
If the goal is removing from society all those scary minorities, they’re doing better than they must have imagined.
(Of course, the goal could be more mundane and bean-counter-ish: to assign to a given crime its relative “worth” in retributive harm. In which case the USSC is clearly more used to shopping at Bergdorf’s rather than Wal-Mart.)
But the folks at the USSC are not fools. So I have a hard time believing that they themselves actually buy that whole “deterrence” line.
Bingo.
I’m reminded of Posner’s decision in United States v. Castillo, No. 11-2792 (7th Cir. 2012), where he just comes out and admits that the Sentencing Guidelines are “inherently arbitrary.” Despite this refreshing concession, he says later in the opinion that the USSC’s “knowledge of penology” demands deference from judges with respect to sentencing. It’s a good example of how federal judges must speak out of both sides of their mouths to make sense of the guidelines. So many of them just go along to get along, however. Gleeson is one of the brave few who, to paraphrase the title of Judge Jack Weinstein’s 2004 Fordham law review article, is willing to “lay down his professional life for justice.” One hopes that Gleeson’s example will catch on in the chambers of his colleagues on the federal bench. Congress can ignore concerned letters from the ABA or the Judiciary Commission, but they can’t ignore judges openly rebelling against the guidelines.
One of the questions I have is whether, and to what extent, will these decisions affect Judge Gleeson’s future. Jack Weinstein is the old man of the court, but John Gleeson is young, and has many years on the bench ahead of him. The question is which bench.
As someone who has spent time talking to the staff and members of the Commission over many years, I can tell you they really believe it will all work fine if you just let them tweak the guidelines some more. Standing out here, it is hard to see how.
Amazing how 25 years later, it’s still just a tweak away from “fine.”