The stunning data on circuit reasonableness decisions
For over a year, and especially as ugly reasonableness patterns emerged, I have been hoping the US Sentencing Commission would start cataloging reasonableness review outcomes and begin analyzing how Booker is being applied at the circuit level. To date, however, the USSC has not provides any comprehensive data or sophisticated analysis of Booker reasonableness review.
Fortunately, Claiborne and Rita, the SCOTUS Booker reasonableness cases, has prompted others to do this analysis. As noted before here, as part of an amicus effort, “NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases,” which documented “that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government.”
In addition, the federal public defenders have done some amazing analysis of the realities and impact of Booker reasonableness review. Their work is available though this great webpage, where one finds this report:
Data on Appellate Review: Now posted on the Booker/Fanfan Resources page are a graph and the data used to prepare it showing a widening gap between the rate of below-guideline sentences imposed in circuits that have adopted a presumption of reasonableness and those that have not (click hereclick here). Also posted now are transcripts of sentencing hearings in which judges expressed the belief that they could not sentence outside the guideline range (click here).
Recent related posts on Claiborne and Rita briefs: