Sentencing Commission to Issue Post-Booker Report

Yesterday, U.S. Sentencing Commission Vice Chair Ketanji Brown Jackson testified at a confirmation hearing before the Senate Judiciary Committee concerning her nomination to serve as a district judge for the U.S. District Court for the District of Columbia. As reported by The Blog of Legal Times, in response to a question from Senator Chuck Grassley (R-Iowa), Commissioner Brown Jackson mentioned that the Commission will soon publish a report concerning sentencing post-Booker.

Grassley also asked Jackson about sentencing practices in the D.C. court, saying he was under the impression that local judges were frequently issuing sentences the departed from federal guidelines. Jackson said the commission was finishing a nationwide analysis of sentencing data, but added that the commission was “concerned” about the trend of more judges issuing sentences outside of the guidelines in certain types of cases. She didn’t speak specifically to the D.C. court.

Last week, the Federal Public and Community Defenders submitted a detailed letter to the Commission in an effort to ensure that its “report on sentencing after Booker v. United States, 543 U.S. 220 (2005) might present the issues in a complete and balanced way.” The Defenders “urge the Commission to include the following information in its report for the reasons that follow:

  • Complete statistics and information regarding regional differences, including whether variation in sentence lengths has grown; the kinds of cases, rates of government-sponsored departures and variances, extents of variances and departures, average guideline minimums, sentences imposed; and the interaction between prosecutorial and judicial sentencing practices
  • A complete account of current data and research regarding racial disparity in sentencing, including appropriate cautions regarding the Commission’s findings, the evidence that the primary cause of racial disparity is not judges, but prosecutorial charging and plea bargaining practices, and the evidence that judges have reduced racial disparity
  • Current data through FY 2012 regarding judicial departures and variances
  • Current data through FY 2012 regarding departures and variances sought or agreed to by prosecutors
  • The role of unwarranted severity in causing disparities in the sentencing practices of both judges and prosecutors
  • A fair account of the views of appellate judges and the appellate caselaw”.

Also notable with respect to Commissioner Brown Jackson’s likely confirmation is a post from Professor Doug Berman regarding the possibility of having four of the Commission’s six members being district judges.

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