March 19, 2019
Federal Criminal Sentences Increasingly Vary by Judge
John Roberts, Esq.
Arseneault & Fassett, LLP
The disparity in criminal sentences meted out by federal judges is increasing, according to a new report issued by the U.S. Sentencing Commission. The Report, entitled Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005–2017, studies disparities according to sentencing judge since the Supreme Court ruled that the U.S. Sentencing Guidelines are advisory rather than mandatory in United States v. Booker.
The Commission selected 30 cities to represent eleven of the twelve appellate circuits, as well as the major geographical regions. As a result of the Commission’s selection criteria, no New Jersey city was studied. However, Philadelphia (Eastern District of Pennsylvania) and Manhattan (Southern District of New York) feature in the Report.
After excluding certain categories of cases from its analysis — such as those in which a life sentence was mandatory, or where the court granted downward departure due to the defendant’s cooperation — the Commission analyzed 143,589 cases. The breakdown of types of offenses are as follows: 31.0% for drugs (USSG § 2D1.1); 14.2% for unlawful entry/remaining (§2L1.2); 13.1% for theft, embezzlement, and fraud (§2B1.1); 12.7% for firearms (§2K2.1); and 29.0% for other offenses.
The Commission measured the difference between the low end of the Guideline range and the ultimate sentence in each case, expressed as a percentage of the Guideline minimum. For example, if the Guideline minimum was 60 months and the sentence was 72 months, the result was (12/60 = ) +20%. Conversely, if the minimum was 60 months and the sentence was 36 months, the result was (24/60 =) –40%. The Commission chose to measure differences from the bottom of the Guideline range based on two remarkable preliminary findings:
- Most (58.4% of) sentences imposed within the Guideline range are precisely at the Guideline minimum.
- Courts depart or vary downward from the Guideline range 21 times more frequently than upward.
Based on these preliminary findings, the Report commented that the Guideline minimum exerts a “gravitational pull” on sentences.
Currently, the courts in the S.D.N.Y. impose sentences that average 36.3% below the Guideline minimum, which is the largest downward deviance from the minimums among all 30 cities studied. Philadelphia is 18.4% below the Guideline minimum, due in large part to a single sentencing judge who was a statistical “flyer,” who sentences an average 40% below the minimum.
The Report concludes that “[i]n most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.” The important unstated conclusion is that as judges increasingly exercise their discretion to vary from the advisory sentencing guidelines, the more important it is for defendants to have the best representation possible. If you or a loved one are facing federal prosecution or even investigation, immediately engage the services of an experienced federal criminal defense firm with a track record of positive results.