Judges Gone Mild?


Last year, after the Supreme Court's ruling in U.S. v. Booker rendered federal sentencing guidelines advisory rather than mandatory, hard-core drug warriors such as House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) had nightmares of judges gone mild, handing out outrageously lenient sentences left and right. But according to a recent report from the U.S. Sentencing Commission (big PDF file), not much has changed as a result of Booker. Although judges are no longer legally bound by the guidelines, for the most part they are acting as if they are:

The majority of federal cases continue to be sentenced in conformance with the sentencing guidelines. National data show that when within-range sentences and government-sponsored, below-range sentences are combined, the rate of sentencing in conformance with the sentencing guidelines is 85.9 percent [compared to 93.7 percent before Booker]. This conformance rate remained stable throughout the year that followed Booker….

The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased [from 57 months to 58 months]….

With respect to within-range sentences, patterns for selecting the point at which to sentence within the range are unchanged after Booker….

The rate of imposition of sentences of imprisonment has not decreased.

While some judges are taking advantage of their new freedom to impose sentences below the guideline range in cases where they think proportionality demands it, they generally seem to be following the same old rules. That is not necessarily good news, of course, but it should take the hot air out of Sensenbrenner's sails as he demands new statutory mandatory minimums to address rampant abuses of judicial discretion that so far have not materialized. As the Drug War Chronicle notes, however, Sensenbrenner claims the Sentencing Commission's report "shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act," and he promises that "the Judiciary Committee intends to pursue legislative solutions."