Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications

Abstract

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines advisory only and no longer mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders.

Because Booker was decided seven years ago, the numbers of pre- and post-Booker cases are now large enough that one can now assess Booker’s specific impact on sentencing for intellectual property offenses. A full understanding of how judges impose sentences for intellectual property crimes is critical, as (1) the number of defendants sentenced for intellectual property crimes has grown 50% faster in the past several years than the number of overall defendants sentenced during that same period; and (2) individuals and corporations derive ever-increasing value from their own intellectual property.

By analyzing federal sentencing data for sentences imposed between 1997 and 2011, this article presents an empirical analysis of how Booker has impacted the ways in which district courts impose sentences on offenders convicted of intellectual property crimes. This analysis reveals, inter alia, that (1) sentences imposed on intellectual property offenders deviate from Guidelines-recommended sentences in two out of every three cases; (2) prosecutors seek and judges impose reduced sentences for intellectual property crimes more frequently than for other comparable crimes; and (3) judge-initiated downward deviations from the Guidelines occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.

Using the foregoing empirical analysis as a jumping-off point, this article also explores how sentences imposed on intellectual property offenders may reflect societal views of intellectual property crimes in general. The data suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences that the Guidelines prescribe for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenses with the sentences that are actually imposed based on prosecutors’ recommendations and judges’ discretion.

Keywords: sentencing, Booker, guidelines, federal, copyright, trademark, Rita, Gall, intellectual property, criminal, departure, downward, empirical, statistic