Disparity Once Again Pervades Federal Sentencing

The Pennsylvania Law Weekly
May 8, 2012

Are sentencing guidelines essential to the fair and efficient operation of the criminal justice system? In the 1970s and 1980s, there were wild disparities in the way thousands of state and federal sentences were imposed across the country.

In response, the Pennsylvania Commission on Sentencing was created by the General Assembly for the primary purpose of creating a consistent and rational statewide sentencing policy that would promote fairer and more uniform sentencing practices across the commonwealth.

In 1984, Congress sought to rein in what was perceived as pervasively capricious federal sentencing practices. The Federal Sentencing Reform Act sought to create uniformity across federal districts. The act called for the creation of a commission that promulgated guidelines for meting out punishment. The guidelines provided a framework by which offenders with comparable criminal records would receive similar sentences if convicted of the same crimes — similar to the guidelines established by the Pennsylvania Commission on Sentencing in 1982.

Initially, judges were miffed by having to surrender discretion in sentencing, but in time came to accept and, some would say, appreciate the guidelines. That all changed in 2004 with the U.S. Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004). The court dealt a blow to state sentencing guidelines by ruling that the Sixth Amendment right to a jury trial prohibited judges from enhancing sentences based on facts not decided by a jury.

A year later, the federal sentencing guidelines were struck down by the court. In United States v. Booker, 543 U.S. 220 (2005), the court held that sentencing guidelines violated the right to a fair trial because judges imposed sentences under the federal guidelines based on facts not found by a jury. That same day, the U.S. Supreme Court also ruled that the federal guidelines must nevertheless continue to shape sentencing decisions even if judges are no longer legally bound to follow them.

The Booker case was a straightforward federal drug prosecution. A jury convicted Freddie Booker of trafficking 92.5 grams of cocaine, a crime punishable by up to 23 years and 10 months in prison pursuant to the federal sentencing guidelines. However, at his sentencing hearing, the judge found that Booker actually had more than 500 grams of cocaine. Those facts not found by a jury, but imposed by the judge, increased Booker's sentence to 30 years.

As a result of Booker, judges are required to calculate the guidelines, using factors such as the seriousness of the offense and the defendant's criminal record. However, judges maintained complete discretion on how long each defendant coming into their courtroom will spend in prison.

Justice Stephen G. Breyer wrote in Booker that the advisory nature of the guidelines would "avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary."

In hindsight, Breyer's prediction was way off the mark. The advisory nature of the guidelines has once again created sentencing disparities. The New York Times recently raised questions "about the extent to which federal sentences are influenced by the particular judges rather than by the specific circumstances of the cases."

Some would suggest that judicial philosophy is rightfully reflected in sentencing. A more conservative nominee, maybe one nominated by a GOP president, may pursue his or her confirmation to the bench while touting his or her tough crime-fighting credentials.

Before the nominee is confirmed, he or she is vetted by the Senate Judicial Committee and voted on by the full Senate. His or her judicial philosophy is there for all to see and, more importantly, to be challenged by a senator or senators who are not aligned with, or do not agree with, that philosophy. Once that nominee takes a seat on the bench, should he or she not be able to exercise discretion in conformity with that philosophy?

New data about federal sentencing practices reveals some interesting and unexpected patterns. The data was obtained through a Freedom of Information Act request and analyzed by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University.

The study included every sentence imposed by federal district court judges in the past five years. Judges who had not sentenced at least 50 defendants were excluded. Therefore, according to TRAC, the results were based on the first-ever review of the sentences imposed by 885 judges in more than 370,000 cases. The data shows "extensive and hard-to-explain variations in the sentencing practices of district court judges."

Two of Pennsylvania's three federal districts were near the top in sentencing disparity. According to data released by TRAC, the Eastern District of Pennsylvania had 16 judges with 50 or more sentences, totaling 828 sentences between 2007 and 2011. The median sentence imposed by those judges was 49.5 months. The lowest average for a judge was 36 months; the highest was 96 months — a difference of 60 months.

In the Middle District, with eight judges meeting the minimum criteria and 439 total sentences, the median sentence was 50.5 months. The low judge averaged 37 months per sentence and the high judge averaged 96 months — a difference of 59 months.

The Western District was a different story. With five judges and 271 sentences, the median sentence was 60 months, 10.5 months longer than the Eastern District median sentence. However, the low average was 37 months and the high average was 71 months. The difference was 34 months. The Eastern District was ranked 10th in the nation in disparity, the Middle District was 15th and the Western District ranked 41st.

Why, in a little more than six years, has such a disparity resurfaced? For one thing, general sentencing data does not account for plea agreements. There are sentences that are negotiated downward in exchange for cooperation and testimony at the trial. Plea bargains account for more than 90 percent of criminal convictions in federal court.

Do the disparities reflect legitimate philosophical differences between judges?

The Associated Press asked TRAC to look at sentence length by the party of the president who appointed the judge to see if the perceived political persuasion of the nominee might have an impact on criminal sentences. The AP asked to restrict these comparisons to punishments imposed after a trial to eliminate the influence of plea bargains.

According to the AP, in the 10 federal districts with the most drug case sentences after trial, Republican-appointed judges imposed harsher average sentences in five districts, but Democratic appointees gave longer sentences in the other five districts. In weapons cases, the longest average sentences were issued by Democratic appointees in five districts and by Republican-appointed judges in the other five districts.

More specifically, defendants convicted after a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democrat-appointed judges, reported the AP. However, weapons convictions after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democrat-appointed judges and an average of less than 12 years from the Republican-appointed judges.

If legitimate judicial philosophy — be it liberal or conservative, Democrat or Republican — is not driving the disparity in sentencing, then one might legitimately argue that federal sentencing without mandatory guidelines is arbitrary and capricious. As the Youngstown (Ohio) Vindicator recently wrote, "Criminal punishment should not amount to the luck of a draw."

Judicial discretion should not be marginalized, but fairness dictates that sentencing guidelines be more than advisory. A balance must be struck between a reasonable expectation of consistency and the ability to mold a sentence to a specific set of facts.