With the upcoming five-year anniversary of the Supreme Court’s decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities. Here are some of my early thoughts:
1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker. With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.
2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases. Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.
3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines. As the US Sentencing Commission’s own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.
4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases. Indeed, playing the “blame game,” here is how I would roughly prioritize who merits the most “blame” for increased sentencing disparities after Booker:
A. Congress — for failing to seek to reform or revise the entire system after Booker
B. US Sentencing Commission — for failing to revise the most unsound guidelines
C. SCOTUS and the Circuits — for failing to give reasonableness review any substantive content
D. Justice Department — for failing to urge Congress or the USSC to do better
Of course, there is additional “blame” to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been “disparate” in their sentencing advocacy over the past five years. Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys’ offices and probation offices, and differing procedures surely contributes to disparate outcomes.
But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day. If there is a broad concern that system-wide justice is not being well-served as we approach Booker‘s five-year anniversary, the blame should be principally placed on the system-wide actors who’ve mostly produced and perpetuated the post-Booker system-wide framework.