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Federal judges are giving out shorter sentences in 30 cities since a key Supreme Court case

The Booker decision gave judges significantly more discretion to issue sentences that are harsher or more lenient than federal guidelines.

by Tess Owen
Jan 10 2019, 10:09pm

How long someone spends in the federal prison system increasingly depends on the whims of the judge hearing their case, according to a new report by the U.S. Sentencing Commission.

The report looked at federal district judges in 30 cities and found that the length of sentences for the same crime could vary greatly — as much as 63 percent — between judges in the same city. And the results indicate a continuing trend toward relative leniency since a key 2005 Supreme Court decision.

The goal of the Commission’s report was to assess the impacts of the U.S. v. Booker decision, which gutted part of the federal sentencing statute that restricted federal judges to imposing sentences within rigid, mandatory guidelines. Today there are still federal guidelines, which sentencing reform advocates say are overly harsh, but the Booker decision meant that judges now have significantly more discretion to issue sentences that are harsher or more lenient.

In the report, researchers compared the sentencing practices of individual judges in 30 different American cities to the average sentencing practices in their city. The Commission found that in 25 of 30 cities studied, there was more spread between individual judges’ sentencing practices since Booker.

Their findings confirm what many who practice federal law know anecdotally, said Doug Berman, a sentencing law expert and professor at Ohio State University’s school of law. “Certain judges are the ‘hang ‘em high’ type, and others are the ‘cry me a river type’,” Berman said.

But there are other factors that need to be considered, he added, including the growing cultural awareness that harsh sentencing fueled the era of mass incarceration.

For example, Philadelphia had the biggest sentencing disparity compared to other cities (63.8 percent), but much of that disparity was driven by judges handing down sentences that were significantly more lenient than the city average.

The city averages themselves are also very telling. For example, from 2005 to 2007, the 18 judges in Chicago on average handed down sentences that were 10 percent shorter than federal guidelines. From 2011 to 2017, with six more judges, that had trended even further downwards, to 28 percent shorter than federal guidelines.

Then there’s the question of whether demographic factors like race, sex, and age are influencing judges’ sentencing decisions. A separate report published in 2017 by the U.S. Sentencing Commission set out to determine demographic disparity in sentencing since Booker, and concluded that black men were receiving increasingly harsh sentences compared to white men (or, rather, that white men were more likely to get easy sentences, whereas judges sentenced black men according to the guidelines).

Rather than this be evidence that mandatory sentencing should be restored to avoid future racial disparity, Berman said that maybe we need to rethink existing guidelines.

“That’s consistent with what folks at the Sentencing Commission have been saying. If we think that disparity is a problem that needs to be remedied, we need to get the guidelines set in a way that garners more respect and makes judges more inclined to follow them,” said Berman, “Rather than make the system mandatory and demand that judges follow them, even when they don’t think they’re a good idea, which is what we had before Booker came along.”

Cover: This Dec. 29, 2015 file photo shows guards walking a corridor in the death row adjustment center at San Quentin State Prison in San Quentin, California. (AP Photo/Ben Margot)