Booker in the Southern District

Julie Kay has a thought provoking (and sobering) story today about sentencings in the Southern District after Booker. The premise of the article is that other than Judge Highsmith (and a couple of others), the Southern District judges are sticking to the guidelines. Although it's hard to argue with the numbers that the article cites, I'm not entirely convinced that our judges are completely sticking to the rigid sentencing guidelines. My experience has been that judges are willing to sentence below (and above) the guidelines in the right cases. The reason, I think, Julie had problems finding lawyers to give stories about particular sentencings outside of the guideline range is that no one wanted to out any judge on this issue because there is (I agree) a fear out there that everyone else is sticking to the guidelines. Hopefully this culture will change. For the best coverage on sentencing, I would go to Prof. Berman's sentencing blog. Here's the intro to the article:


Cover StoryNot so free after all
April 03, 2006
By: Julie Kay
Shelby Highsmith

Then the U.S. Supreme Court gave federal judges more discretion in sentencing defendants, defense attorneys in South Florida rejoiced. But 15 months after the closely divided court issued its landmark rulings in U.S. v. Booker and U.S. v. Fanfan, prosecutors are the ones smiling. Since getting the leeway from the nation’s highest court, federal judges in South Florida have opted to stay mostly within the guidelines. A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5 percent of 1,951 cases sentenced. That’s a significantly higher percentage than in many other districts. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 percent of 65,368 cases. The South Florida rate is also higher than in the middle and northern districts of Florida, where judges sentenced within the guidelines in 65.6 percent and 71.7 percent of cases respectively. In the Booker and Fanfan rulings, by 5-4 votes the justices granted judges greater freedom to tailor sentences to the individual circumstances of cases. The majority held that the tough mandatory federal sentencing guidelines in effect since 1987 should only be used as advisory. The court also said the mandatory guidelines violated the Sixth Amendment right to trial by jury because sentencing under the complex guidelines could be based on aggravating factors not found by the jury. South Florida criminal defense lawyers were thrilled that judges no longer would be allowed to lengthen sentences based on factors not found by the jury. And they hoped judges would use their new discretion to grant more downward departures from the guidelines. But since Booker, South Florida federal judges sentenced below the guideline range — known as departing downward — in 21.4 percent of cases. A breakdown shows 10.1 percent were supported by the government for cooperating witnesses. Slightly more than 2 percent were departures based on previously allowed factors such as mental defect, family status, and age. Nine percent of downward departures were for other reasons. That 9 percent reflects discretionary sentences judges could only make since the Booker ruling. The office of Interim U.S. Attorney Alex Acosta declined to comment on the sentencing commission report.