Fourteen months ago, the US Supreme Court upset the federal sentencing apple cart when it ruled in US v. Booker that the sentencing guideline scheme in place for nearly two decades unconstitutionally allowed judges to sentence defendants based on facts not heard by a jury. As a remedy, the Supreme Court held the guidelines could no longer be mandatory, but only advisory. While some sentencing reform advocates hoped that more humane drug sentences would result, and conservative congressmen and the Justice Department worried that somebody somewhere would not do enough prison time, after a year of post-Booker sentencing, little has changed.
Prosecutors can and occasionally do appeal sentences below the guidelines. In the 21 appeals of lenient sentences filed by prosecutors in the past year, courts have reversed 15, the Sentencing Commission reported.
The main subjects of federal criminal sentencing procedures are convicted drug offenders. According to the Bureau of Justice Statistics, at the end of 2003, drug offenders made up 55% of all federal prisoners. By now, with the federal Bureau of Prisons reporting 180,000 federal prisoners as of last week, about 100,000 people are serving federal time for drug crimes. And they are serving longer sentences after Booker than before; the Sentencing Commission found the average sentence for a drug trafficking offense had increased from 83 months to 85 months.
"It is certainly telling that the average sentence has gone up -- not down -- even though we are seeing more below the guideline sentences," said Ohio State University law professor Douglas Berman, author of the Sentencing Law and Policy blog. "The big reality is things haven't changed that much, and that's somewhat surprising given there was so much complaining by judges when the guidelines were mandatory, but there is a judicial culture of guideline compliance."
"Booker hasn't caused lower sentences," said Nora Callahan, director of the November Coalition, a drug reform group that concentrates on freeing federal prisoners. "With mandatory minimum sentences and heavy reliance on the advisory guidelines, that ruling doesn't seem to make much difference. It looks pretty much like business as usual in the federal courts, but that's a problem because the status quo is injustice."
"The biggest advantage of Booker is that it allows the Court to sentence below the guidelines in cases in which it finds the guideline sentence to be unreasonably high," said Denver defense attorney Jeralynn Merritt, author of the crime and politics blog TalkLeft. "This can be particularly helpful to defendants in drug cases who did not cooperate with the government. In the cases I've seen where the judge has sentenced below the guidelines, the factors relied on most have been a disparity of sentences between others in similar circumstances and a finding that a lesser sentence will reflect the seriousness of the offense and provide just punishment for the offense," she told DRCNet.
But those cases are the exception, Merritt said. "In the sentencings I've been involved in or observed, courts are mostly sticking to the guidelines. Exceptions have been in cases of first offenders for whom the guidelines call for jail but the court thinks an alternative sentence is sufficient, and cases in which co-defendants with equal conduct got far lower sentences than the person about to be sentenced," she said.
At a hearing last week before the House Judiciary Committee, headed by Rep. James Sensenbrenner (R-WI), expert witnesses largely agreed that the Booker ruling had not produced a situation requiring a legislative "fix," although that did not stop Sensenbrenner from blustering about the need to do something to ensure that people stayed behind bars for long enough. In a statement released before the hearing, Sensenbrenner vowed to pursue new legislation.
"The data is now in and the picture is not pretty," Sensenbrenner said. "The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law," he argued, pointing to a small number of sex offender cases. "The sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas. In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system."
But most observers don't see a problem requiring new sentencing legislation. "As most of the witnesses at last week's hearings noted, sentencing remains largely unchanged," said Mary Price, general counsel for Families Against Mandatory Minimums. "The courts are generally sentencing within the guidelines, and while some are sentencing below the guidelines, a number of those sentences have been reversed by appellate courts. If anything, what we have seen is a little troubling for people who think the guideline sentences are too harsh."
"The Sentencing Reform Act had two goals," said FAMM's Price. "One was uniformity, and that's what all the noise is about. But the other goal is proportionality -- the notion that the sentence should bear some relationship to the gravity of the offense -- and that has been completely forgotten."
"There has been no wholesale abandonment of the guidelines since Booker," said Merritt. "There is no need for a legislative fix. The system is working, defense attorneys and prosecutors have adapted, as have the courts. Booker is a blessing in that it restores some discretion to the sentencing judges, but in my experience they are using it quite judiciously and sparingly."
"On the whole, federal sentences have remained the same or are somewhat more severe."
"Congress need not be concerned that there is an epidemic of leniency in the federal courts,” said Carmen Hernandez, first vice president of the National Association of Criminal Defense Lawyers and a federal sentencing guidelines expert. "What should concern Congress is the vast sums of our tax dollars that are being spent to imprison nonviolent offenders by the numbers without regard to 'the nature and circumstances of the offense and the history and characteristics of the defendant.'"
"Congress should also be questioning why our federal prisons are filled with a disproportionate number of blacks, Latinos and young men from poor families,” said Hernandez. “In terms of protecting society, Congress' real concern ought also to be that every year we are releasing tens of thousands of persons back into the community without any real treatment or job training, and without their families, who have long moved on."
"It is easy political theater for people like Sensenbrenner to complain that sentences are too lenient," said Berman, "but the relative lack of national attention to their complaints suggests the issue isn't getting much traction. The Booker ruling has both made the story so complicated and made it seem less urgent that the political heat has died down considerably. The Justice Department is never happy when anyone besides prosecutors has significant discretion, and Justice is eager to see a mandatory minimum guideline system, but leaving the status quo as is makes more sense."
There are problems that pre-dated Booker waiting to be addressed, Berman said. "There is a range of flaws in the system that we have to endure because Booker hasn't changed things that much," he said. "Mandatory minimum sentences, the length of some drug sentences, the crack-powder cocaine disparity, the rigidity in criminal history rules -- all of these need to be looked at."
But attempting to address the injustice of the federal drug war through redressing harsh sentencing is intervening way too late in the process, said Callahan. "Sentencing is the back end of the problem," she told DRCNet. "We haven't fixed the problem of discretion in arresting and charging. Who has the power to throw people into this federal meat grinder? Is it the informant on the street who feeds somebody to the cops? Is it the officer who decides to make an arrest? Is it the prosecutor who sets the charges? We need to fix this system from the front end, and Booker and other sentencing reforms don't address any of that."
Meanwhile, Rep. Sensenbrenner and the Judiciary Committee, along with the Justice Department, are moving ahead with plans to tighten the sentencing screws. The committee has set two more hearings, one for later this month and one in May. Look for them to attempt new "fixes" to the non-existent problem of soft federal sentencing. And the federal drug war gulag continues to grow.