October 30, 2003 - The Wall Street Journal

Federal Judges Aren't as Lenient As Lawmakers Say, Studies Show

By Gary Fields in Washington and Jess Bravin in New York

Federal judges haven't been as lenient in sentencing criminals as some in government argue, according to two new reports. Government researchers did find wide disparities in sentencing across the country's 12 regional judicial circuits. In drug cases, for example, district judges in San Francisco's Ninth Circuit were .19 times as likely to mete out sentences below the guidelines of the U.S. Sentencing Commission -- to make what are called "downward departures" -- as those in the Fourth Circuit, based in Richmond, Va., an unpublished draft study by the General Accounting Office shows.

Those figures are adjusted to control for differences among cases and to exclude cases in which the government sought leniency because the defendant pleaded guilty and provided it with "substantial assistance."

But the two reports paint a different picture from the one legislators offered when Congress passed a law in April to restrict judges' latitude.

The GAO, Congress's oversight arm, found that of 175,000 federal criminal sentences, given nationwide from fiscal 1999, through fiscal 2001, 17 were downward departures. A separate study released this week by the Sentencing Commission, itself, looking at fiscal 2001, found that about 11% of criminal sentences given by federal judges fell below the guidelines.

Both reports found rates substantially above the 5.8% reported for 1991 but below the 18.1% for 2001 that was, cited during the congressional debate over whether lawmakers should tighten the sentencing rules.

The two sets of figures differ because of the way each agency counted, The Sentencing Commission separated cases based on whether the government was involved in bringing about sentences below the guidelines, as in judicial districts with special "fast track" programs to deal with immigration cases. The GAO didn't distinguish immigration cases, which are a large part of the docket in border districts, or other categories of departures.

The findings come amid, a fight between the judiciary, on one side, and Congress and the Bush administration, on the other, to control punishment of criminals. Republican lawmakers have been pushing legislation to severely curtail judicial discretion in sentencing defendants, moves strongly backed by the Justice Department, which wants more restrictive action than the measures approved by the Sentencing Commission that took effect Monday. To the accusations of leniency, the judiciary counters that the sentencing changes merely shift power to prosecutors.

Some of the sentencing disparities appear stark. For instance, the GAO report found that district judges in the Ninth Circuit used their discretion to depart downward in 47% of drug cases, compared with 4% in the Fourth Circuit. The average of the 12 circuits' downward-departure rates for these drug cases was 13%.

But researchers cautioned that Oven though the Ninth Circuit is widely considered the country's most liberal, and the Fourth its most conservative, the numbers don't tell the whole story.

Because the Ninth Circuit includes the Mexican border states of Arizona and California, it has a disproportionate number of alien defendants, who often receive lighter sentences so they can be deported more quickly. The highest such departure rates were found in San Diego's Southern District of California, with 70% of 5,300 drug cases. Nationwide, non-citizens were twice as likely as citizens to receive lighter sentences, at 24% of cases.

The GAO also found considerable differences based on the defendant's race and the type of drug offense. Nationwide, 28% of 21,700 marijuana defendants received lighter sentences, while only 8% of 14,600 crack defendants did. Hispanic defendants were most likely to receive leniency -- 23% of 29,800 defendants did -- while blacks were least likely, at 8% of 20,400 defendants. The rate for white and "other" defendants was 13%.

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