New Report Finds That Federal Sentencing Varies Dramatically Depending Upon the Judge

Although the Federal Sentencing Guidelines were enacted in the 1980s to erase sentencing disparities, sentences passed down by federal courts still vary wildly from district to district. A new study suggests that the problem lies with individual judges, rather than the facts of the case.

The Transactional Records Access Clearinghouse (TRAC) report studied 370,000 sentences imposed by 885 judges from a across the country, between 2007 and 2011. It is the first study of its kind. Before, judicial decisions in criminal cases, for instance, were always too difficult to find because they could not be searched by the judge, only by the defendant or lawyer’s name. Also, the United States Sentencing Commission typically excludes judges’ names from its sentencing data to prevent individual judges from being singled out. TRAC accessed the data using the Freedom of Information Act.

What the TRAC report showed was that sentences for common crimes, such as drug crimes, could vary dramatically depending upon the district or the judge. Here in Texas, one Northern District judge issued typical sentences of 60 months, while another issued sentences of 160 months. On the other hand, the judges at the district court for Minnesota had little difference between them — the low was 52 months and the high 64 months. A similar discrepancy was found in white collar cases. Of the discrepancies, the report noted: “[T]o the extent judges’ median drug sentences depart from one another within the same district, these differences cannot be explained on the basis of the worthiness of the cases handled by individual judges. One or more other factors — such as the pre-existing predilections of the judge assigned — must be the source for these disparities.”

TRAC does not go further than this, such as speculating why certain judges issued much greater sentences than another judge in the same district. There is no mention of the judges’ age, political bent, childhood background, religious inclination, or other factors. In that respect, the judges’ motivations remain a mystery, and only another dedicated examination of the facts could uncover a pattern rooted in ideology. At the very least, the study gives a sense of how suspects would fare throughout the country, and where it would be most unlucky to be caught with drugs or committing a white collar crime. Here in the Western District, the lowest median drug sentence is 12 months, the highest 92 months.

The situation is ironic. The Federal Sentencing Guidelines continue to carry much sway, despite the fact that they failed to meet their objective. The Sentencing Guidelines were set up as part of the Comprehensive Crime Control Act of 1984. They consist of a sentencing grid with 43 levels, four zones, and criminal history. Although the sentences that have resulted from the Sentencing Guidelines could be drastically different for similar crimes (such as the difference between crack cocaine and powder cocaine possession), it has been overlooked so long as the Sentencing Guidelines as a whole made the judges more consistent.

Now, some could claim that the current sentencing disparities are the result of United States v. Booker‘s decision to make the Sentencing Guidelines advisory instead of mandatory. Even so, many or even most judges continue to use the Sentencing Guidelines as a framework for sentencing, to the frustration of federal criminal defense attorneys everywhere. If that is the case and the sentences still remain so varied, what is the point of even having Sentencing Guidelines? While sentencing disparity is a serious problem, there must be some sort of middle ground between judges being able to do whatever they want and judge as little more than a human calculator. Maybe the TRAC report is the first step toward finding that middle ground.