Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission
A very kind reader sent me a copy of the letter sent by the Justice Department’s Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines. This letter can be downloaded below, and here is the letter general assessment of post-Booker realities:
More than five years after the Supreme Court’s decision in Booker v. United States, 543 U.S. 220 (2005), Sentencing Commission data — and our prosecutors’ experience in federal courts across the country — suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes. On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines. This regime includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders and most offenses. It also includes cases involving crimes for which sentences are largely determined by mandatory minimum sentencing statutes. These crimes include many drug trafficking offenses and certain violent and gun offenses.
On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines. This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender. It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges. These ooffense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.
We are concerned by this evolution of federal sentencing into two separate regimes for several reasons. First, we think it leads to unwarranted sentencing disparities. More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant’s sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing. Scholarly studies are now beginning to reinforce these reports. This is extremely problematic. In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.
Second, we think the existence of these dichotomous regimes will, over time, breed disrespect for the federal courts. Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice willl be compromised.
Third, we think certainty in sentencing is critical to reducing crime rates further and deterring future criminal conduct, but the current trends are towards less certainty. We have experienced dramatic reductions in crime rates over the past 20 years, and our collective goal should be to continue on this path in the most just way possible for years to come. The Sentencing Commission has an important role to play, and it includes ensuring that both certainty of punishment and equal justice in sentencing are achieved by the federal courts.
For all these reasons and more, we believe the Commission, in the 2010-2011 amendment year, should prepare a comprehensive report on the state of federal sentencing that rèviews these issues and concerns. While we applaud the Commission for its continuing and valuable data releases over the last five years, we are disappointed that there has been no systemic analysis of federal sentencing since the Final Report on the Impact of United States v. Booker on Federal Sentencing, released in March 2006. Since that Report, Commission data have revealed troubling sentencing trends emerging across the country where, for example, certain districts are experiencing substantially higher departure and variance rates — and other districts substantially lower rates — than the national average. Federal sentencing has undergone a series of constitutional shocks, the full ramifications of which the Commission ought to explore and report. The Commission’s regional hearings and data releases have been important contributions to all those concerned about the impact of Booker on federal sentencing policy and practice. But we think more is needed.
We continue to urge the Commission to explore new ways of analyzing federal sentencing data in order to understand federal sentencing outcomes better, identify any unwarranted sentencing disparities, and determine whether the purposes of sentencing are being met. But most importantly, we urge the Commission to synthesize all of the information it has collected and to issue a report on the state of federal sentencing. We think the report should also layout a way forward to address systemic concerns and ensure that the principles of sentencing reform — predictability, elimination of unwarranted disparity, and justice — are achieved. Going forward, the Commission should explore how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public.
We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary. These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses.