Saturday, July 31, 2010

The Federal Sentencing Guidelines and Sentencing Disparities in Federal Court

If you have followed this blog, then you know that I am a former federal prosecutor, (for over 20 years), in Augusta, Georgia. You also probably realize that I still like to follow what's going on in federal court, even though I am now a criminal defense lawyer. In other words, I still handle federal criminal cases; I just sit at a different table and represent a different client when I go to federal court now!
This week, the Daily Report has featured a new issue involving federal sentencing. The article involves a request by the Department of Justice for the U.S. Sentencing Commission to investigate sentencing disparities by federal judges around the country. The article also mentions that the disparities are perhaps the greatest in fraud and child pornography cases. For instance, federal judges imposed sentences of one to four years in the AIG fraud case, (which involved more than $500 million in losses), but another federal judge sentenced a defendant involved in a $40 million Ponzi scheme to a whopping 25 years in prison. Numerous other examples abound. The article suggests that what (sentence) you get may depend on who (which judge) you get.
You might recall that, back in the 1980's, Congress enacted the federal sentencing guidelines to eliminate such sentencing disparities around the country. But then, five years ago, in Booker v. U.S., the Supreme Court struck down the mandatory nature of the guidelines and made them advisory. In other words, federal judges still check the sentencing guidelines, but they now have more discretion about not following them.
Will this new call by DOJ for a study of guidelines sentencing disparities do any good? I doubt it. And frankly, in many cases, maybe it's not such a bad thing that judges have discretion and can take into account the unique facts of each case in imposing sentences.
What do you think? Should sentences be more uniform? Or should judges have more discretion?

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