The inevitability of Booker disparity anecdotes

This article in Monday’s Newark Star-Ledger, which is entitled “Disparities are emerging in criminal sentencings,” reveals yet again how easy it is to spotlight a few federal cases in order to suggest that sentencing disparities are “emerging” in the wake of Booker.  The article, in addition to providing background on the impact of Booker, details seemingly disparate sentencing outcomes in seemingly similar child pornography cases from New Jersey.

The Star-Ledger article is interesting and generally well done, although it fails to note that in roughly 2/3 of all cases in which judges impose sentences below the guidelines, these sentence reductions are at the behest of prosecutors.  That failure in turn highlights broader concerns I have about these sorts of post-Booker news stories: these articles generally fail to explore how prosecutors can be the source of sentencing disparities and how factors like divergent fast-track programs or cooperation policies (or even the basic crack-powder cocaine differential) might have produced pre-Booker disparities that were even more disconcerting than any post-Booker disparities resulting from divergent judicial decisions.

I fear it is inevitable that the post-Booker world will be flyspecked and that selected anecdotes will be the basis for (overly broad) claims that greater sentencing discretion is leading to greater disparity after Booker.  (Recall, of course, that this is exactly what AG Alberto Gonzales did when calling for a legislative “Booker fix” in his speech this past summer (basics here, commentary here and here and here).) 

Ultimately, the real story of Booker‘s impact on sentencing disparities is a lot more nuanced than the Star-Ledger article suggests.  And I hope to explore these realities in much greater depth in forthcoming posts in my “Dead Booker walking?” series.