Judges in the Eastern and Southern districts of New York are among the country's most adventurous when it comes to sentencing defendants outside the ranges set by the "advisory" U.S. Sentencing Guidelines.
Thirteen months after the U.S. Supreme Court's groundbreaking decisions in United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005), statistics show that many New York judges, who had a reputation of being relatively liberal even before Booker, are happily flexing the new-found discretion those decisions conferred on them.
Indeed, the most recent post-Booker 2005 statistics, published by the U.S. Sentencing Commission on Feb. 14, show that Eastern District judges were more willing than their colleagues in any other district but one to give sentences outside the guidelines. Southern District judges ranked ninth of 94 federal districts in departing from the standards.
Overall, courts of the 2nd Circuit issued sentences within the guideline range 49.6 percent of the time subsequent to Booker, a reduction from 63.8 percent. Nationwide, compliance with the guidelines fell to 61.9 percent from 72.2 percent.
"It's no surprise that judges in these districts are giving more sentences outside the guideline range -- since 1987 there has been an outcry from the bench and the bar, as well as an informed portion of the public, that guidelines sentences are too harsh," said defense lawyer Gerald Shargel. "The judges here have long felt shackled by the guidelines."
Booker ruled the mandatory portion of the guidelines unconstitutional because certain decisions were being made based on facts found by judges and not by juries, in violation of the Sixth Amendment guarantee of a jury trial. Fanfan followed by saying that Booker essentially made a key section of the guidelines "advisory."
Booker and Fanfan were decided in January 2005. The Commission's most recent report covers data mined from Jan. 12, 2005 through Feb. 1, and breaks down 63,631 cases nationwide -- 3,768 in the 2nd Circuit's six districts.
Year-to-year comparisons are difficult because of two events in 2004. First, there were additional limits on judicial discretion imposed by Congress in the USA PROTECT ACT in April 2004. Second, some courts began changing their behavior in the summer of 2004, when the Supreme Court foreshadowed the Booker decision in Blakely v. Washington, 542 U.S. 296 (2004), invalidating a Washington state sentencing scheme on Sixth Amendment grounds. So the best year with which to compare the post-Booker experience is 2003. In that two-year period between 2003 and 2005, the number of sentences imposed within the guidelines for the entire 2nd Circuit declined to 49.6 percent from 61.2 percent.
In 2005, in the Eastern District, only 36.0 percent of sentences were within the guidelines range. That is a substantial decline from 2003, when 55.3 percent of the sentences fell within the range.
The Southern District in 2005 was closer to last year's national average: 60.0 percent of its sentences were within the guidelines, compared with 78.4 percent of the 2003 total.
By contrast, New York state's other two districts showed less change. Sentences within the guidelines declined to 55.4 percent from 59.4 percent in the Northern District and to 54.4 percent from from 55.4 percent in the Western District.
However, the most telling statistics emerge when downward departures supported by prosecutors in exchange for a defendant's cooperation are taken out of the mix.
Not including the miniscule number of upward departures, sentences in the Eastern District in 2003 fell outside the range 22.8 percent of the time without prompting by prosecutors. By 2005, court-initiated departures had risen to 32.0 percent. In the Southern District, they rose to 24.0 percent from 8.3 percent.
'LEADING THE WAY'
Douglas Berman, a professor at the Ohio State University Moritz College of Law and one of the nation's leading commentators on the guidelines said, "There is certainly more discretion after Booker and judges nationwide are using that -- and at least some statistics support the notion that the Eastern and Southern districts are leading the way."
By comparison, 13.8 percent of the sentences given by judges in the Northern District were outside the guidelines range and not initiated by a prosecutor. The figure for the Western District was 9.8 percent.
Among the remaining 2nd Circuit courts, Connecticut made the top 10 list with 26.3 percent non-prosecutor initiated outside-the-guidelines sentences. Vermont had 15.9 percent.
Eastern District U.S. Attorney Roslynn R. Mauskopf said several factors drive the high out-of-guidelines sentences in the Eastern District. Mauskopf, who believes the guidelines played a critical role in reducing national disparities in sentencing, agreed that the post-Booker numbers represent an acceleration in trends that were already well established before the Supreme Court spoke.
She highlighted three areas:
First, judges sometimes disagree with policy determinations in the guidelines, such as the disparity in treatment between crack and powder cocaine dealers.
Second, she said, "we see a loosening or a broadening of the standards articulated in the guidelines for those downward departures that the guidelines considered disfavored or not ordinarily relevant unless the circumstances are extraordinary," such as family circumstances, the health and age of the defendant, or his youth or charitable acts. "Before, the judges in this circuit tended to employ these, but the legal grounding for doing so is much more solid in the post-Booker world," she said.
Finally, although to a lesser extent, she said, "we've seen some situations where judges will double count factors that are already taken into account in guidelines."
Two examples are a defendant's acceptance of responsibility for his or her crime and the fact that the defendant played only a minor role in the offense. These are already included as downward adjustments in the guidelines calculations, but Mauskopf said, "some judges are taking those factors to account in a downward adjustment and then giving the defendant additional credit and adjusting the sentence even further downward."
Former Southern District U.S. Attorney Mary Jo White, a partner at Debevoise & Plimpton, said that "prosecutors in the Southern and Eastern districts were very mindful of the sentences that were meted out under the guidelines -- some of which were, in their view, overly harsh in some circumstances -- and therefore there was this sort of the atmospheric you'd find in both of those districts, which is also more conducive to judges showing more flexibility."
'OODLES OF NUANCE'
Berman and those who have closely followed the evolution of the guidelines caution that any attempt to take a single statistic and draw broad conclusions is misleading.
"Any effort to simplify the story, to say 'ah ha, here are two numbers that tell the story' I think necessarily obscures oodles of nuance," he said.
One nuance that is not reflected in the numbers, said Eastern District Chief Judge Edward Korman, is the actual variation in sentence.
"It's critical to know how much of a departure is actually granted," Korman said. "Are you looking at small adjustments percentage wise, or at really significant ones? It is so important to look at the extent of the downward departure and whether or not it happens in circumstances where the guidelines are being driven by the amount of drugs, or sometimes, the amount of money."
Shargel agreed, saying that just because judges are departing downward outside the guidelines range, does not mean they are "giving the courthouse away." Rather, Shargel said, "In most of the cases that I have seen where a 'non-guidelines' sentence has been imposed, the logic behind it is reasoned and carefully measured by judges who are recognizing, and deferring to, the guidelines structure."
TYPES OF CASES
Another aspect that must be considered to get an accurate picture of the impact of Booker is the types of cases that dominate court dockets.
For example, the Eastern District U.S. Attorney's Office frequently supports downward sentencing departures in exchange for information from defendants. In 2005, 30.1 percent of the departures in the district were sought by the government, an increase from 21.6 percent only two years previously. (In the Southern District, government-sought departures were just 15.4 percent of total sentencings, a slight increase from 2003).
"We have a lot of complex litigation cases that focus on enterprises and organizations and our goal is to dismantle those criminal organizations and the way you can most successfully deal with that is with cooperators," Mauskopf said. "It's a very important tool."
What the Southern and Eastern districts have in common is a tradition of independence and a rebellious attitude among judges toward the guidelines, where the vast bulk of departures come not in white-collar crime or violent drug gang cases, but in smaller frauds and non-violent crimes. Judges in both districts are rarely hesitant to sentence within the range, or even the top end of the guideline range, in gang cases.
Southern District Judge Jed Rakoff, who has praised Booker from the bench, said the type of cases, coupled with the size of the departure, is a critical factor in gaining an accurate picture of the post-Booker world.
One area that stands out in both New York districts is immigration.
"A typical case in which there is a modest reduction in the Southern District is an illegal re-entry case, where a guy is caught coming back into the country because of his family, and he's going to be deported anyway and instead of three years he might get two, because the judge figures that's punishment enough," Rakoff said. "That being said, it would be strange if Booker made no difference, because judges for years have been complaining that, even where there was room to depart, they still couldn't give an appropriate sentence."
Many observers say that the pre-advisory guidelines served their purpose because the problem they were designed to address -- wild sentencing disparities between different regions -- has been significantly reduced.
And they are confident that making the guidelines advisory will not change that. In fact, since Booker, national average and median sentences meted out by judges has barely budged from sentences given before the Supreme Court announced the decision.
GUIDELINES STILL MATTER
Ironically, after Booker was decided, the 2nd Circuit was the first out of the gate in setting parameters on the limits of judicial discretion when it issued U.S. v. Crosby, 397 F.3d, last year.
Crosby said that the guidelines still matter, and that judges should consult them closely before sentencing below the range. A number of circuits have followed its lead and emphasized that the guidelines still guide the way to an appropriate sentence.
Berman, who clerked in the 2nd Circuit for Judges Jon Newman and Guido Calabresi, said the remarkable story is that people who expected that judges would do as they please post-Booker have been proven wrong -- and he credits Crosby for part of that.
"I always thought that the judges in New York had pretty significant room to run before Crosby," he said. "And Crosby reinforces this. But it also reinforces this message: 'Don't run without the guidelines manual in your saddlebag.'"
Under Crosby, a judge is still required to calculate the guideline range before departing or issuing a non-guideline sentence. He or she must also provide for the defendant as well as the 2nd Circuit, in writing, the specific reasons for departing or moving outside the range.
One statistic that some feel would be helpful has yet to be produced. Defendants in hundreds of cases within the 2nd Circuit that were sentenced pre-Booker were given the possibility of a "Crosby remand," where the case is sent back to the district judge, who determines whether, in light of Booker, they would have given the defendant a materially different sentence. If the judge indicates he might have given a different sentence, the defendant is then entitled to a hearing.
Some judges say that examining Crosby remands would give an accurate picture of the post-Booker landscape because it would measure how a judge once chained to the guidelines would act once emancipated. But others consider it too small a sample size or helpful only anecdotally. One judge said the sample is skewed because Crosby remands ask a judge to second-guess himself.
What is important to Korman, who has had very few remands under Crosby is that the guidelines still have force.
"The guidelines still have an important effect because the guidelines are still the starting point," he said. "And even if judges are departing in small amounts, they are still looking to the guidelines. They can't be ignored after Booker and Crosby."