Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.
From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.
The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.
Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.
When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines.
The survey asked questions grouped into five broad areas: statutory and structural sentencing, sentencing hearings, guideline application, departures and general assessments. Judges could offer written comments in addition to their survey answers.
Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing.
Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.
And 53 percent disagreed somewhat or strongly that judge-specific sentencing data should be reported "as a means to promote transparency in sentencing."
The latter result reflects the judges' "scar tissue," said sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law.
"It's understandable but I think unfortunate," he added. "I could easily imagine writing a question like: 'The commission should have more authority to report particular districts or judges who seem significant outliers relative to the national trend.' But it has already been cast as: 'Do we make a blacklist of bad judges or keep this as opaque as possible?' There's a lot of in-betweens."
Berman said he was also not surprised by the judges' responses on mandatory minimums or their happiness with the current advisory guideline system. However, he added, he would have liked the survey questions to have probed deeper into how the system was working.
"Given what a big change Booker represented and given the sense we're in an era of hope and change, the commission is still asking all the old kind of questions in all the old kind of ways," he said. "But maybe that's all you can do with a survey."
The commission has held a series of regional public hearings on sentencing practices, noted Berman, and those hearings may produce more "dynamic" insights into sentencing.
