February 12, 2005
Sentencing- Little Change, but Maybe More Change is Needed
The arguments, the fears, and the concerns post-Booker have been focused on whether judges will be handing out sentences below the sentencing guidelines. As noted here DAG Comey's memo used language calling it "difficult times."
In truth, however, the early returns show inconsequential change. As usual, Professor Doug Berman, is always on top of the issue in his sentencing blog where he reports on the "House Booker hearing" of this past Thursday. Interestingly he shows how different media eyes reported the same scene. The bottom line is that U.S. District Judge Ricardo Hinojosa, chairman of the Federal Sentencing Commission, spoke to the fact that most judges are sticking with the sentence that would be given pursuant to the guidelines. (See also here).
We looked at this issue in posts here, here, here and here although another did not necessarily concur when it came to corporate criminality. As the early returns continue to come in, it is important to remember several things:
1. It is too soon to judge who won this race, even though there is seldom a winner when it comes to punishment issues. So.... Congress.... sit tight until all the ballots are counted to determine if there is a need to provide damage control.
2. The fact that the guidelines are in a somewhat advisory status should not stop the Sentencing Commission from evaluating cases where there have been departures by judges to a sentence below the guidelines. Perhaps we will find that these cases of non-adherence to the guidelines are important to soften the effect of the strict guidelines structure.
3. If we do start finding that in more white collar than street crime cases the sentences are coming in lower than the guidelines, perhaps it is time to examine why this disparity is occurring. Could this be an indication that the guidelines are out of sync with punishment values? Maybe, just maybe, the problem is not judicial disparity but rather a problem in the sentences offered by the guidelines.
4. And, finally, in cases such as a 24 year sentence for Olis (see here), the rare case where a defendant's sentence is far removed from the white collar norms, perhaps the flexibility is needed to adjust the sentence to a "reasonable" level. (see Ann Woolner's reporting on the appellate arguments in this case here).