It’s Not the Judges
By Mary Price | November 22, 2011 4:41 pm

Response to Nov. 15 Speech by Assistant Attorney General Lanny Breuer

By Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums (FAMM)

Judges are not to blame.

In remarks November 15 to the American Lawyer/National Law Journal Summit, Assistant Attorney General Lanny Breuer singled out the federal judiciary as the source of “significant disparities” in sentencing.  Read his remarks here. He implied that judges are responsible for inter-district disparity — differences among federal district courts in rates of adherence to the federal sentencing guidelines — and all but accused the judiciary of practicing racial bias in the sentencing of black men.  These “serious challenges” to sentencing policy he claims are the result of the Supreme Court’s decision in Booker v. United States, which replaced mandatory guidelines with an advisory guideline system, freeing judges to exercise discretion at sentencing. This is not the first time the Department has suggested judges are responsible for disparity. Look here and here.

Here are a few things the Department should reveal to the public before pointing the finger at judges again.

1.  Prosecutors share responsibility for different guideline adherence rates among districts.

Yes, prosecutors play a huge role in sentencing outcomes that vary from district to district. How?  By selecting which cases to prosecute and which charges to bring.  They also affect outcomes by recommending sentences that vary from the guidelines, or by not objecting to – and not appealing — below-guideline sentences.  The government exerts a tremendous gravitational pull on sentences and sentencing practices. But, much of their impact cannot be assessed.  Plea and charge bargaining occurs behind closed doors.  Meanwhile, prosecutors’ nod and wink acquiescence in below-guideline sentences is buried in sentencing transcripts, but show up in statistics looking like judge-caused disparity.  Bare statistics obscure the real role of the government.

Take for example, the recent case of Joseph F. Skowron, discussed here and here, a hedge fund manager convicted of conspiracy and obstruction of justice in a $32 million insider trading scheme prosecuted in the Southern District of New York.  The guidelines called for a 12 year sentence.  The government agreed with the defense on a sentence of five years — the statutory maximum — a 41 percent variance from the guidelines.  The U.S. Attorney called the sentence as “a steep price that Chip Skowron will now pay.”  Not readily apparent is that the government dropped a set of charges that would have exposed Skowron to thirty years in prison, in exchange for his plea of guilty. Because Skowron’s sentence was not the result of a government-requested downward departure, however, it could very well show up as a steep judicial variance in the statistics.

It turns out the government owns the lion’s share of below-guideline sentences.  Since Booker, prosecutors have requested below-guideline sentences in over 107,000 cases to reward substantial assistance, to speed up immigration cases, and for other reasons.  Judges are responsible for only 60,800 below-guideline sentences.

Moreover, prosecutors cause inter-district disparity in how, where and how often they seek below-guideline sentences.  For example, in 2010, the government asked courts to impose below guideline sentences in over 60% of cases they prosecuted in the Southern District of California but in only 3.7% of cases in the District of South Dakota, a difference of 56.7%.

2.  Different federal districts are just that:  different.

No two federal districts are alike and prosecutors treat their different caseloads differently – often at the behest of the Attorney General.

For example, the Attorney General decides in which districts prosecutors can ask the judge to impose below-guideline sentences in certain immigration cases.  A defendant who quickly pleads guilty to an immigration violation is rewarded with a lower sentence recommendation (“fast track”) from the government.  Here is where disparity comes in:  the Attorney General authorizes such fast track disposition in some, but not all, districts.  Illegal immigration cases in other districts do not get the benefit of a government recommendation.  So, the Department’s sentencing policy produces built-in sentencing disparity among similarly situated defendants.  Their only difference?  The district in which they are prosecuted and whether the AG has authorized a lower sentence.

Mr. Breuer points out correctly that in the Western and Southern Districts of Texas, judges sentenced within the range over 71% of the time in 2010.  This is due to charging practices, the nature of crime, and the very low sentences called for in those cases. For example, in the Western District, the majority of cases the government brings are for  low-level immigration offenses (comprising 60% of the caseload with a median recommended sentence of 8 months) and marijuana offenses (comprising 63.7% of all drug cases, guideline range is 18-24 months max and 12-18 months with guideline-recommended adjustments).   In the Southern District of Texas, immigration violations make up 73% of the caseload with a median sentence of 12 months. The guideline ranges are not only already very low, but many defendants serve much of their sentence prior to being sentenced.

Meanwhile, in the very different Southern District of New York, where judges sentenced within the guidelines 32.6% of the time (and granted government requests for lower sentences or sentenced above the guideline in an additional 18.4% of cases), fraud cases comprise 20% of the docket, where the final sentences (after variances) average 40 months, while drug cases make up 35.9% of the caseload and weigh in at an average sentence of 65.7 months.  High guideline sentences in these drug and fraud cases likely invite more below-guideline sentences than the preternaturally low sentences in Texas. Not to mention that there is no fast track there, and courts imposed below guideline sentences in nearly 64% of those cases in 2010 to alleviate the disparity.  Notwithstanding those variances, the Southern District of New York has the highest average sentences of any in the country for immigration offenses:  23.5 months and average sentences for all offenses of over 54 months, exceeding the national average.

3.  Flawed guidelines, not flawed judges, drive variance rates.

Not all guidelines are created equal or deserve slavish adherence.  The Department of Justice has called some of the most problematic guidelines into question and asked the Sentencing Commission to review and perhaps amend those that result in significant variances. Look here. Despite that, Mr. Breuer singled out, as he has in the past, differences in the sentencing of high loss fraud offenders as evidence of unwarranted disparity.

The guidelines covering these offenses can recommend sentences of life in prison for first time, non-violent offenders.  So unhelpful are the fraud guidelines that they have been criticized by judges and former prosecutors alike as, for example, a “stain upon common sense,” and “rules . . .  completely untethered from both criminal law theory and simple common sense.” One judge (a former prosecutor) bemoaned “the utter travesty of justice that sometimes results from the guidelines’ fetish with absolute arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.”  Given the ludicrous sentencing outcomes recommended by the guidelines, it is no surprise that judges find the unduly long sentences called for in high loss cases no help at all.

The solution?  The Department of Justice should, rather than imply judges are the problem, instead continue to encourage the Sentencing Commission to revise such troublesome guidelines so that they are more relevant and useful to judges. I am quite confident that variance rates will fall if this advice is followed.

4.   Sentencing rules drive racial disparity.
In his speech, Mr. Breuer relies on a recent demographic study by the Sentencing Commission that found that black male offenders receive sentences longer than white male offenders and that gap has grown since Booker. The inference:  judges exercising discretion under advisory guidelines lead to racial disparity in sentencing and it is getting worse. “We must work to end such baseless disparities,” he states.
What he neglected to mention are the Commission caveats and cautions about the reliability of its findings or any conclusions. “[T]he results presented in this report” the Commission writes, “should be interpreted with caution.”
Why?  Because data that the Commission does not collect and cannot account for is missing from its study.   This missing data includes legally relevant information that judges use when sentencing defendants.  This missing data, according to the Commission, call its own findings into question.  “Judges make decisions when sentencing offenders based on many legal and other legitimate considerations that are not or cannot be measured,” the Commission stated, and “[t]he omission of one or more important variables usually causes the value of the variables that are included in the model to be overstated.”

Other academic researchers at Pennsylvania State University have questioned the methods employed by the Sentencing Commission in its study and found that their choices affected the outcomes, including the race effect finding. Read the article here.

Critics neglect to mention that the greatest sentencing gap between black and white defendants was during the mandatory guideline era.  The Commissions’ report revealed that using a more comprehensive analysis assessing sentencing between 1999 and 2009, the greatest difference in the length of sentences between black and white offenders occurred in 1999, when sentencing was mandatory.
Among the chief causes of racial disparity are sentencing rules, such as mandatory minimums, which judges can do nothing to ameliorate.  Some of them are described in a just released report by the Sentencing Commission on mandatory minimum sentencing. Read the report here. The Commission’s analysis of 73,239 offenders sentenced before a federal court during 2010 found that Black offenders convicted of an offense bearing a mandatory minimum penalty were sentenced to a mandatory minimum in 65.1% of their cases, the highest rate of any racial group, followed by White (53.5%) and Hispanic (44.3%) defendants.
In fact, advisory guidelines have enabled judges to ameliorate the impact of the most unfair sentencing guideline rules, including the universally condemned crack cocaine sentencing guideline. In 2010, judges sentenced crack cocaine offenders (the vast majority of whom are Black) below the guidelines in 60% of cases, compared to only 37% of cases in 2004.  Judges were able to do real justice in these cases, shaving an average of five years from the sentences of 1000 predominantly African American men.

I welcome the Department’s call for “candid discussions about sentencing and corrections reform.” I applaud some steps that the Department has taken, including seeking funding for reentry programs and the Attorney General’s recognition that “not every disparity [in sentencing] is an unwelcome one.”  But I hope the Department will resist the temptation to accuse judges of exercising their discretion inappropriately since the guidelines were made advisory with cherry-picked facts and unsubstantiated charges.

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