“Booker at 20″: has much really changed in federal sentencing?
As noted in this prior post, I have started a series of posts here on the topic of “Booker at 20,” partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic. Helpfully, a few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, starting with Jonathan Wroblewski. Here are some excerpts from his article:
Jury Trials: The foundation of the decision was that juries were being wrongfully cut out of the process. The data shows that juries are playing a lesser role now than they were pre-Booker. In Fiscal Year 2003, the last full fiscal year before the Supreme Court’s decision in Blakely v. Washington and the year arguably best for comparison, 95.7% of sentenced federal defendants resolved their case through a guilty plea (there were 2,996 trials reported that year by the Commission). In 2023, 97.2% of sentenced federal defendants resolved their cases through a guilty plea (there were 1,824 trials reported that year, a 39% reduction from 2003). So fewer trials post-Booker.
Sentence length: At least one measure of severity suggests that it has increased post-Booker. In FY 2003, the Commission reported that the average federal sentence for all cases was 47.9 months imprisonment. In FY 2023, the Commission reported that it was 52 months imprisonment. Since Booker, there have certainly been changes in the kinds of cases prosecuted in the federal system, changes that impact the average sentence imposed. In Fiscal Year 2003, the Commission reported that 69,680 were sentenced in federal courts for felonies and Class A misdemeanors. Of those, 38.1% were sentenced for drug offenses, 21.6% for immigration offenses, and 17% for fraud and theft offenses. In Fiscal Year 2023, 64,124 were sentenced in federal courts for felonies and Class A misdemeanors. Of those, 29.9% were sentenced for drug offenses, 30.0% for immigration offenses, and 8.1% for fraud and theft offenses. Comparing average sentences by certain crime types, in FY 2003, the average sentence for drug trafficking offenders was 76.9 months imprisonment. In FY 2023, it was 82 months. In FY 2003, the average sentence for fraud offenders was 14.4 months. In 2023, it was 22 months.
Disparity: In 2010, the Department of Justice’s annual report to the Commission noted that post-Booker, “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. . . . On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines.” The available data suggests this is even more so today. The Commission itself has studied inter- and intra-district sentencing disparities, and its findings are unambiguous. On inter-district disparities, the Commission said that “[v]ariations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker. These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.”
On intra-district disparities, the Commission said, its “current analysis measured judges’ average percent differences from the guideline minimums in their cases in relation to their city’s average during three periods between 2005 and 2017. It demonstrated a clear increase in the extent of differences in sentencing practices in a majority of the cities studied following the Supreme Court’s 2005 decision in Booker and continuing after the Court’s 2007 decisions in Gall and Kimbrough.”
A glance at the percentage of cases sentenced within the guidelines by district further shows the increased post-Booker disparities. For example, in FY 2023, only 42.4% of cases were sentenced within the guideline range, while in FY 2003, 69.4% were sentenced within the range. This is not surprising, given the post-Booker requirement that offender characteristics be considered in every case and the lack of guideline reform implementing it. But the change in non-guideline sentences has not been consistent across districts or across judges, and the numbers suggest growing disparities.
For example, the highest rate of within-guideline sentences in FY 2003 was in the First Circuit, where 77.3% of cases were sentenced within the range. The lowest rate that year was in the Ninth Circuit, where 59.6% of cases were sentenced within the range. This resulted in a difference between the highest and the lowest rates of 17.7 percentage points. In FY 2023, by contrast, the highest rate of within-guideline sentences was in the Fifth Circuit, where 63.9% of cases were sentenced within the range, while the lowest rate that year was in the Ninth Circuit, where 22.5% of cases were sentenced within the range. This was a difference of 41.4 percentage points. Examination of other circuit and district data similarly show expanding disparities.
The thesis of the article is that, contrary to what some argued when Booker was decided, Booker was not “the fix.
Prior post in this series: