Former U.S. Deputy Attorney General Mark R. Filip warned at Tuesday’s Hallows Lecture that disparities in sentencing by federal judges are returning since the U.S. Supreme Court ruled five years ago that sentencing guidelines are only advisory.
Filip, who also is a former federal judge and now practices with a Chicago law firm, said that United States v. Booker in 2005 reduced the import of sentencing guidelines that dated to the late 1980s, “returning us to an era of indeterminate sentencing.” While he said that commentary on Booker from both judges and defense lawyers has been generally favorable, data on sentencing patterns since the decision show that in different parts of the country, significantly different sentences are being given for comparable convictions.
Overall, Filip said, in fiscal year 2008, only 59 percent of sentences fell into the non-binding range given in the guidelines, with the figure ranging from about 40 to 70 percent in different federal circuits.
Filip criticized “the corrosive effect of this disparity,” adding, “It hardly promotes respect for the judicial system” when, as has been reported, defendants and inmates talk in jails and prisons about which judge gives more lenient sentences.
Filip urged that federal judges spend time collaborating on how to set sentences and discussing what is appropriate, and that the federal Sentencing Commission take strong positions when it observes broad patterns of sentencing below the recommended ranges. “The systematic benefits of having relatively uniform sentences” should be kept in mind by judges, he said.
Filip also expressed concern about two other trends, the use of business concepts in measuring whether the legal system is doing a good job and growing reliance on corporate compliance monitors as part of the settlement or sentence in disputes involving businesses.
“Law enforcement is not like a business,” he said. Applying concepts such as return on investment or cost-benefit analysis is often not appropriate. Measuring the performance of a judge, prosecutor, or law enforcement agency by data such as how many cases were brought, the length of sentences, or arrest or conviction totals may distort wiser and more appropriate judgment of whether people are doing their jobs in the best manner.
Corporate compliance monitors are not always inappropriate, Filip said, but the use of them has been expensive, burdensome, and not really productive in many instances. “At minimum, we have come to a point where caution is appropriate,” he said.
Filip was Deputy Attorney General under Attorney General Michael Mukasey in the last two years of the administration of President George W. Bush.
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