The U.S. Sentencing Commission has released a new report on the impact of United States v. Booker on federal sentencing practices and trends. This 2013 report, which may be found in its entirety by scrolling down, is an update to the Commission’s 2006 report on the same subject. Among the interesting findings, the Commission reports that the guidelines for fraud (2B1.1) and child pornography offenses (2G2.1/2G2.2) have held increasingly less weight among district court judges than other offense types. Sentences for both offense types continue to be imposed below the advisory range at increasing frequency and magnitude as a result of judicial action independent of government sponsorship. In short, judges increasingly are finding that the sentences recommended by the advisory guidelines for fraud and child pornography offenses are inconsistent with the fundamental purposes of sentencing, namely, proportionality, deterrence, incapacitation and rehabilitation.
This 2013 Booker Report, however, reveals that the Commission has not received this information well. In light of the fact that Booker allows judges more discretion to impose reasonable sentences, the Commission, through this Report, is now asking Congress to provide a more robust standard of appellate review where, among other things, the guidelines sentencing ranges are to be presumed reasonable by judges when imposing sentence; currently, judges are precluded from making such a presumption, but only must “consider” the advisory range among many other factors. Such an appellate standard, however, seems to undermine the very holding of Booker, to wit, the guidelines are merely advisory. Moreover, the Commission appears to miss the point its own data indicate: those guidelines that judges are disregarding at higher rates than other offense types indicate a problem with that particular guideline. In other words, the Commission itself should give more weight to judicial sentencing practice as a feedback mechanism to help the Commission refine the guidelines, rather than looking at such trends as problematic.
While the Commission has done an outstanding job compiling and interpreting such an enormous amount of data, its statutory reform suggestions, which clearly are designed to curtail the incidence of departures and variances, are somewhat surprising. After all, the initial set of guidelines promulgated in 1987 were largely based on judicial sentencing practices, or what the Commission denominates its “empirical approach.” USSG Ch. 1 Pt. A(3). As the Commission itself recognizes, “the guidelines represent an approach that begins with, and builds upon, empirical data . . . these guidelines are, as the [Sentencing Reform] Act [of 1984] contemplates, but the first step in an evolutionary process.” Id. And part of this evolutionary process entails “monitoring when courts depart [and vary] from the guidelines and . . . analyzing their stated reasons for doing so” in order that “the Commission, over time, will be able to refine the guidelines to specify more precisely when departures [and variances] should and should not be permitted.” Id.
Accordingly, the Commission ought to embrace such departures and variances as a necessary mechanism for informing the evolution of the guidelines, rather than see them as phenomena that ought to be curtailed through Congressional intervention (something, ironically, that has plagued the Commission too often during its existence, and which the Commission often has opposed). Booker, in other words, should be viewed by the Commission–and for that matter, the Courts, practitioners, and academics–as the start of a well-needed, data-driven second sentencing reformation.