The Year of Jubilee . . . or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker

Abstract:     
This article analyzes the available data on the operation of the federal sentencing system during the eleven months of 2005 following the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which transformed the formerly mandatory Federal Sentencing Guidelines into an effectively advisory system. The article attempts to answer four empirical questions: (1) What effect did Booker have on the proportion of cases sentenced within the applicable guideline range? (2) To the extent that the proportion of sentences within the guideline range has declined in the wake of Booker, which sentencing actors, judges or prosecutors, are primarily responsible for the decline? (3) What effect has the Booker decision had on the severity of sentences imposed in federal court? (4) What effect has Booker had on regional sentencing disparity in the federal courts?

The article concludes: (1) The proportion of within-range sentences has indeed declined by approximately 11% nationwide following Booker, albeit the degree of decline varies considerably by region. (2) The decline in within-range sentences is primarily attributable to judicial choices to sentence outside the range, but the percentage of prosecutorial recommendations for sentences below the applicable range also increased in 2005. (3) The average severity of federal sentences stayed the same from the period of FY2004 pre-dating Blakely v. Washington, 542 U.S. 296 (2004), to the period of 2005 post-dating United States v. Booker; however, viewed in the context of recent upward trends in federal sentence severity, this result is subject to differing interpretations. (4) The available evidence suggests that the advent of advisory guidelines has not so far produced statistically significant increases in regional sentencing disparity.

The Article concludes with a series of observations about the policy implications of the observed statistical trends.

Number of Pages in PDF File: 45

Keywords: crime, criminal law, federal criminal law, federal sentencing, sentencing, sentencing guidelines, Federal Sentencing Guidelines, disparity, punishment, Blakely, Booker, Apprendi, Feeney, Sentencing Commission, Justice Department, judiciary

JEL Classification: K1, K14, K4, K41

Accepted Paper Series