Friday, May 09, 2014
A "Holder Effect" on Federal Sentencing?
Last summer at the ABA delegate meeting, Attorney General Holder made news when he said what many of us in this business have known for a long time, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Speech here. After the nation's chief law enforcement officer joined the chorus for sentencing reform, some legal pundits wondered whether there would be any kind of "Holder Effect" driving down the length of federal sentences.
Sentencing guru and law professor Doug Berman thinks there just might be (post here) and speculates that perhaps judges are thinking even harder about the wisdom of imposing guideline sentences that call for lengthy incarcerations. Three weeks ago, the U.S. Sentencing Commission issued its quarterly sentencing data report for the last quarter of FY 2013 (here) and Professor Berman has finished crunching the numbers. His analysis reveals a small uptick in judge-initiated, below-guideline sentences to just over 20% of all federal sentences (up from 18% from early 2013) -- the largest percentage of below-guideline sentences for any quarter on record. But the news is not all good. The single largest determinant of a below-guideline sentence still remains the recommendation of the prosecutor on behalf of a cooperating defendant.
Is it too much to hope that the Department backs up AG Holder's words with below-guideline recommendations for non-cooperators in appropriate cases? Now that would be change we could believe in.