February 13, 2005
Measuring Departures in a post-Booker World
Counting the number of sentencing departures is not a proper method for computing sentencing changes resulting from the Booker decision. Just using numbers to compute the difference between a pre and post-Booker world does not tell the full story.
This is especially true for white collar cases.
Departures from a guideline sentence may be more appropriate in the white collar context where the punishment received by the convicted defendant is aggravated by additional punishment caused by collateral consequences. After all it should be equal punishment and not additional punishment just because the individual committed a white collar offense.
Hon. Nancy Gertner, federal district judge, recently made comments suggesting the use of a "sentencing information system." Basically this means moving away from "act of departure" reporting to a "why departing" reporting system.
This makes sense, which should be no surprise since it comes from Judge Gertner, an incredibly thoughtful member of the judiciary. After all, if everyone desires to achieve true uniformity in sentencing, it is necessary the look beyond numbers to the individual circumstances of the case. For example, an attorney sentenced on a criminal conviction might be subject to disbarment and loss of their professional livelihood, and medical personnel may face a sentence beyond jail time and fines, such as a loss of license and an inability to participate in government programs.
Attorney Irwin Schwartz, a past president of the National Association of Criminal Defense Lawyers (NACDL) recommends that defense attorneys present judges with "findings or fact and conclusions of law" on sentencing issues. This will assist judges in reciting the rationale of their decisions. It will allow for better determinations of "unreasonableness" should the case go on review and also it will assist the "departure counters" in properly examining "why" there was a departure as opposed to merely counting "acts" of departure.