New sentencing opinion assails guideline conception of “similarly situated”
District Judge Nancy Gertner is in fine form with a new opinion in US v. Garrison, No. 07cr10142 (D. Mass. May 20, 2008) (available for download below). Though covering lots of important post-Booker ground, Judge Gertner takes particular aim at the sentencing guidelines concept of “similarly situated” as highlighted by this passage:
The Guidelines define “similarly situated” only with reference to the particular guideline categories. If a defendant had an offense level of 14 and a criminal history of I, the Guidelines assumed that you were similarly situated to other 14s and Is. But in this case — and perhaps many others — that is a false assumption. Similarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability. The individual supplying the drugs, for example, could have been a first offender, with a criminal history I, not because he had been crime-free all of his life but because he did not “do” street drug deals and thus rarely encountered government agents. And the reverse, an offender with a high criminal history score, could have been caught in this drug sweep even when his drug dealing was episodic, when he had tried to change the direction of his life.
The numbers — the Guideline computation — could mask real differences between offenders, in effect, a “false uniformity.” Sandra Guerra Thompson, The Booker Project: The Future of Federal Sentencing, 43 Hous. L. Rev. 269, 275 n.25 (2006); Michael M. O’Hear, The Myth of Uniformity, 17 Fed. Sent’g Rep. 249 (2005). It is especially important, now that the Guidelines are advisory, that judges are charged with looking beyond the Guidelines categories and that they know what their colleagues have done in comparable cases. The new discretion will be influenced, as it should be, by the precedents of the court: a true common law of sentencing.