In the wake of US v Booker, which mandated sentence guidelines, 25 of the 30 cities studied saw jail time spreads increase

The length of jail time defendants in the United States receive increasingly depends on the judge hearing their case, a new report from the US Sentencing Commission revealed.

Comparing more than 140,000 cases over 13 years across 30 US cities, the study found that within the same city the length of a defendant’s sentence could swing by as much as 63% depending on the federal judge.

The growing discrepancy follows the supreme court’s landmark ruling in US v Booker, which struck down laws that mandated federal district judges to impose sentences within a range of preset guidelines.

That 2005 decision marked a “sea change” in federal sentencing, Philadelphia-area defense attorney Dennis Cogan told the Guardian.

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Philadelphia, where Cogan practices, was the city with the largest discrepancy between sentences among judges at 63%. The spread was also high in major jurisdictions like Manhattan (59%) and Chicago (50%). Of the 30 cities studied, 25 saw spreads increase after Booker.

The discrepancies most often turn up in cases where a defendant turns state’s witness and provides assistance to the government, Cogan noted. “Some judges would say ‘go home, you did a wonderful job.’ Others will say, ‘I’ll take a year off your 30-year sentence. That’s the discretion they’re supposed to have, and there’s so much that varies from case to case and judge to judge.”

The study raises complicated questions. On the one hand, the fact that a prison sentence could vary by years or even decades on what is essentially the flip of a coin, is difficult to square with a legal system that aspires to be “blind” and offer “equal protection”.

On the other hand, many attorneys and criminal justice reformers see laws that require judges to hand down preset sentence lengths a matter of profound injustice, especially when it requires them to order long, draconian sentences they themselves do not agree with.

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“I think their discretion is good and important and useful because when judges are pigeonholed that takes their power and humanity away,” said NiaLena Caravasos, a Philadelphia-area defense attorney who argues in federal court. “I’m definitely a proponent of a judge having as much discretion as possible … I’d rather take my chances with a difficult judge and figure out how to reach them.”

Judges are not robots, Caravasos stressed. “I have always found that it is most important to really understand where a judge is coming from and the things that she/he places great importance on,” she added.

Federal judges are still bound by mandatory minimum sentences in the majority of drug cases, even after Booker. The statutory mandatory minimums in those cases are different from the sentencing guidelines addressed by the ruling. Several of those mandatory minimums were rolled back slightly by the recent First Step criminal justice reform bill.