Yesterday, the Supreme Court told federal trial judges that they had enormous discretion in sentencing criminal defendants, which will probably accelerate a mild trend toward more lenient sentencing. But if history is any guide, judges will continue to use their sentencing power relatively sparingly, specialists in sentencing law said.
The two decisions issued yesterday built on a 2005 decision that made the federal sentencing guidelines advisory rather than mandatory, which led to the modest trend toward leniency.
Now that the Supreme Court has again emphasized that federal trial judges have the discretion to move outside the guidelines, further departures are rather likely. But the size of that may not be huge, said Douglas A. Berman, a law professor at Ohio State University. “The really interesting question,” Professor Berman said, “is whether we get a more significant gravitation away from the guidelines.”
Frank O. Bowman, a law professor at the University of Missouri, said much depended on the willingness of trial judges to use their new power.
“Now that the Supreme Court has said, ‘Do more if you want to,’” Professor Bowman said, “one would certainly expect that that this time the district courts are going to start to be more assertive, if they want to be.”
But, by temperament and training, judges like to apply clear rules, and the guidelines, which are nothing if not detailed and elaborate, are just that sort of mechanical road map. The impact of yesterday’s decisions may therefore be more modest than their language.
Indeed, this week’s sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket.
On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.
One of yesterday’s decisions, Kimbrough v. United States, concerned that disparity, and it said that judges may take account of its impact in their sentencing decisions. That point is not directly related to the decision facing the sentencing commission, but it may nonetheless have an impact.
“It gives more cover to the sentencing commission to go retroactive,” Professor Berman said of yesterday’s decisions.
If the changes are made retroactive by the commission, prisoners may submit legal motions for re-sentencing before trial judges, under the revised guidelines. And yesterday’s Supreme Court decisions may encourage those judges to treat those applications sympathetically.
According to an analysis of the offenders who would be eligible for re-sentencing, published by the commission in October, 94 percent are males, 86 percent are black and their average age is 35. The average sentence reduction under the revised guidelines would be 27 months, to about 10 years from almost 13 years.
At a hearing before the commission last month, the Justice Department opposed retroactivity.
“We are going to see an influx of the very people who are most likely to re-offend and are most likely to upset these fragile neighborhoods,” Gretchen C. F. Shappert, the United States attorney in Charlotte, N.C., told the commission.
“The impact of 19,500 defendants in the criminal justice system will be profound,” Ms. Shappert continued. “That is 25 percent of all defendants who were sentenced in federal court in 2006 and represents 10 percent of the entire criminal population” in federal prisons.
Whatever their impact on cocaine cases, yesterday’s decisions will probably accelerate a trend toward more leniency in sentencing. Putting aside more lenient sentences sought by the government, typically for cooperating witnesses, about 12 percent of sentences these days are below the range recommended by the guidelines. In 2004, the comparable number was 5.5 percent.
The decisions will also probably amplify emerging regional variations in sentencing. In the federal court in Brooklyn, for instance, about 30 percent of lenient sentences not sought by the government are below the guidelines range; the corresponding number in the eastern part of Louisiana is 5 percent.
“It’s absolutely clear that you are going to see even more regional variation than you see now,” Professor Bowman said.
The number of harsher sentences may increase as well. Since the 2005 decision, Professor Berman said, “we saw a doubling, but it was a doubling from a very low rate.” According to the sentencing commission, upward departures grew to 1.6 percent from 0.8 percent in recent years.
Yesterday’s Supreme Court decisions only concerned the federal system, a relatively small part of the overall criminal justice system. But the concerns expressed by the justices are quite likely to have a broad impact.
“The system is interconnected and hydraulic enough,” Professor Berman said, “so that anything that happens in the bigger and in some sense badder federal criminal justice system will trickle down.”