Soft Numbers

A front-page story in today's New York Times suggests that, judging from the experience in states such as Virginia, making federal sentencing guidelines advisory rather than mandatory may not make much difference in the penalties imposed by judges. Then again, given the differences between state and federal systems, including the way judges are selected, it might.

The Times notes that 65 percent of federal sentences in 2002 fell within guideline ranges, which sounds surprisingly low. But as the accompanying graph shows, an additional 17 percent of sentences were reduced below the guideline range based on cooperation with prosecutors, while another 5 percent or so were reduced because of plea agreements or "expedited immigration cases," two other categories approved by prosecutors. In 1 percent of cases sentences were higher than the guideline range. That leaves only about 12 percent of sentences that were reduced in a way that might have aroused objections from prosecutors--not very strong evidence that judges were abusing their discretion, as congressional critics charged.

Of course, that percentage could rise substantially now that the guidelines are no longer mandatory. But given the track record of legislators who condemn federal judges for being too soft, their complaints about the new system should be taken with a grain of salt.