Please, please share your data USSC

I have a lot to say about the reply brief filed today by the Acting Solicitor General in Booker and Fanfan, and I hope to comment at length about the substance of the brief in future posts. But I have to note one fascinating, and disconcerting, representation in the SG’s reply brief concerning the number of cases that involve Blakely factors.

As highlighted here, I have long been wondering about exactly how many federal cases involve Blakely factors; this seems like a very important fact for many reasons. Critically, last week, the Wall Street Journal reported (as noted here) that, “according to a U.S. Sentencing Commission internal memo,” “[m]ore than 44% of all cases in 2002” involved Blakely factors. But we hear a quite different story on page 19 of the SG’s reply brief:

The Sentencing Commission advises that, based on staff analysis of 2002 statistics, approximately 65% of federal criminal cases are projected to involve the application of sentence-enhancing Guidelines factors.

And two months ago a US Sentencing Commissioner was quoted (as noted here) saying that only 20% of all federal cases involve Blakely factors.

Whatever the reality, I really wish the USSC would share the data it has assembled in its “internal memo” with the rest of the world ASAP. I suppose I am glad to hear that the press, and not just DOJ, gets access to US Sentencing Commission data analysis, but how about the rest of us? Needless to say, the work of the defense lawyers who filed briefs last week might have been enhanced, to everyone’s benefit, if all counsel in Booker and Fanfan had access to this information.

Especially since the number of Blakely-impacted cases is a very important issue, and one that the Wall Street Journal and the Acting Solicitor General apparently assess quite differently, it would be helpful if the USSC would at this critical time make its work public. I trust the USSC has nothing to hide and that many benefits would flow from having this information publically available.