After Booker, Federal Judges Impose Inconsistent Criminal Sentences

Recent reports reveal huge discrepancies in the sentences judges across the country impose for offenders convicted of child pornography and white collar crimes. The revelation is triggering the U.S. Justice Department to recommend that the United States Sentencing Commission should re-examine the sentencing guidelines in the context of white collar crimes and child pornography sentences.

Numerous verdicts resulting in inconsistent criminal sentences have prompted awareness that for this sub-set of crimes, sentencing has gone awry. According to an editorial in the New York Times, in one instance, a defendant involved in the American International Group (AIG) fraud case received a sentence of only one to four years for causing more than $500 million in losses. In another instance, a Ponzi-schemer caused $40 million in losses and received a three-and-a-half-year sentence. Statistics also reveal that judges impose one-year sentences or even probation for individuals possessing small amounts of child pornography, which is quite a bit more lenient than the five- to seven-year federal sentencing guideline recommendation.

Sentencing Reform Act Was Declared Unconstitutional In Booker

Congress enacted the Sentencing Reform Act of 1984, which created the United States Sentencing Commission and gave the commission authority to construct uniform sentencing guidelines for individuals and organizations convicted of federal felonies and Class A misdemeanors. From then on, all federal judges were required to impose sentences that were consistent with the guidelines.

In Booker, the Supreme Court held that federal judges were no longer required to follow the mandatory federal sentencing guidelines implemented via the Sentencing Reform Act of 1984, but they should "consult the guidelines" for direction in sentencing. The Supreme Court reasoned that forcing judges to follow required sentencing guidelines violated a defendant's Sixth Amendment right to a jury trial.

The rise in sentencing discrepancies, the U.S. Justice Department points out, is due in large part to the Booker decision.

Booker has eliminated the mandate of consistent sentencing, leaving the door open for federal judges to impose harsher or more lenient sentences, as they see fit. For offenders convicted of white collar crimes such as embezzlement and for offenders convicted of child pornography, judges may rely on mitigating or aggravating factors more frequently than for other crimes.

Statistics reveal that federal judges today seem to calculate sentences for criminals involved in fraud or embezzlement crimes as well as internet luring and child sex crimes using more subjective factors when they weigh the appropriate length of sentence for each crime and convicted criminal that appears before them.

U.S. Supreme Court Chief Justice Warren warned this would happen. Prior to the enactment of the Sentencing Reform Act of 1984, Chief Justice Warren noted, "Substantial differences in sentencing for which no adequate reason can be given . . . detract from the objective of equal treatment. We ought to be able to develop approximate sentencing criteria for various offenses and eliminate those sentences which are clearly inappropriate."

Justice Department Urges Re-examination of Sentencing Guidelines For Certain Crimes

Because of the statistics on sentencing discrepancies, Justice Department is urging the United States Sentencing Commission to re-examine the guidelines with regard to white collar crimes and child pornography, noting that for these crimes, federal sentencing after Booker "has largely lost its moorings." As an example, the Justice Department suggests eliminating the extra penalty requirements that the sentencing guidelines impose for pedophiles who use computers simply because the vast majority of persons convicted of the offense now use computers to commit the crimes.

According U.S. Attorney for Colorado, David Gaouette, Colorado federal judges are not imposing consistent sentences for these crimes. At a 2009 public hearing in Denver, he testified before the U.S. Sentencing Commission that "certain unnamed district judges have routinely disregarded sentencing guidelines in the years since the U.S. Supreme Court's Booker decision despite the court's requirement that judges still consult the guidelines before issuing sentences." Of the six federal judges in his district - out of a total of 11 appointed federal judges in Colorado - he believes only three consistently follow the guidelines. He declined to identify these judges by name.

In testimony submitted to the commission, Gaouette said that "the advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges." Further, he concluded, many judges are implementing more lenient sentences.

Judge John Kane, senior judge on Colorado's U.S. District Court, disagrees and thinks Gaouette's allegations that judges disregard sentencing guidelines is inaccurate. "All of Colorado's federal judges follow the Supreme Court's ruling that the guidelines must be considered first when formulating sentences," he claimed. And convicted offenders still have the right to appeal for review of the sentence imposed.

Clearly, where subjectivity is involved in an adversarial system, advocates will argue that injustice can infiltrate the system...but real people are affected whether they are the ones serving the sentences, imposing the sentences, or feeling a lack of due process because of a sentence imposed.