During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc. President Richard Adelson for a $50 million securities fraud.

Those widely disparate sentences don’t make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.

The department called for a “comprehensive review” of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors’ experiences and data “suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.”

If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. “More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant’s sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing,” said Jonathan Wroblewski, director of the Criminal Division’s office of policy and legislation, in the report.

Some sentencing scholars agree that judges are “straying off the guideline reservation” more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be. “I do think they’re on to something,” said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law. “It’s one of the dirty little secrets of federal sentencing now. There are situations where which judge you pull can drive the sentence.”

But, he added, the subject for debate is how widespread the problem may be. “Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon? That’s where analysis by the [Sentencing] Commission is needed.”

The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. “Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence,” she said. “It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control.”

TALE OF TWO REGIMES

DOJ’s Wroblewski described in the report one sentencing regime in which judges are following the guidelines closely for most offenses, many of which require mandatory minimum sentences. Those crimes include many drug-trafficking offenses and certain violent and gun crimes.

In the other regime, judges regularly impose sentences outside of the guidelines, regardless of the nature of the offense. Most notably, he reported, large numbers of federal judges have lost respect for guidelines applied to certain offenses, such as child pornography and fraud crimes involving high loss amounts.

Utah’s Cassell called DOJ’s acknowledgement that judges have lost respect for the fraud and child porn guidelines “remarkable.” And he noted that the department in its report does not argue that those guidelines are fair and accurate. “I think they’re conceding judges have lost confidence in those guidelines for good reason — they’re mindlessly draconian in some situations,” he said.

But the metaphor of two sentencing regimes is a “little odd,” according to Frank Bowman of the University of Missouri School of Law. It suggests, he said, that some group of judges always or almost always adheres to the guidelines while another group always or almost always does not. The sentencing landscape is more nuanced than that, he said.

The George W. Bush administration and congressional legislation during those years had pushed the guidelines substantially upward, Bowman noted. Immediately after the Booker decision, sentences dropped roughly to where they had been at the end of the Clinton years, he said. And then, for a while, sentencing held “kind of steady.”

But in the past 18 months or so, Bowman said, “You had a series of decisions where the Supreme Court has seemingly said to courts of appeals, ‘We’re going to make these guidelines really advisory, and you are largely stripped of your ability to impose serious, meaningful oversight or constraint over district court decisions unless they are totally weird or anomalous.’”

The result, he said, has been district court judges taking “the bit in their teeth a little bit more” than had been the case. “Guideline compliance is starting to drop at a faster rate than has been true at any time since Booker.

Bowman and other sentencing experts said there always have been regional differences in how the guidelines have been applied, but the differences from region to region and judge to judge may be becoming more pronounced. The department, in its report, essentially said the disparity problem is apparent enough that the commission has an obligation to look into it, said Douglas Berman of Ohio State University Michael E. Moritz College of Law. “I think they recognize that, with a fairly lenient-leaning commission, they sometimes won’t love the outcome, but they see the benefit of having rules everybody respects.”

CHANGE IN TONE

Bowman agreed, noting a “dramatic change in tone” from the previous administration. “Notice the calls for reconsideration of the fraud guidelines and similarly in child pornography,” he said. “They’re not saying these sentences have to be higher or judges are crazy to be letting this or that category of criminal off the hook. That would have been more the tone from the previous administration. DOJ recognizes the problem they’ve got in the fraud area is the guidelines have become disconnected from reality, at least at the top end, for high-loss, corporate official-type sentences. They are disconnected from any sentence a judge is willing to give and therefore not of any use.”

Whether the Sentencing Commission will undertake what Berman called a “big ticket” study, particularly a close examination of judge-to-judge sentencing, is an open question, all agreed. The commission’s chairman, William Sessions III, chief judge for the District of Vermont, was not available for comment.

“This question of interjudge disparity really has not been carefully analyzed by the commission,” Cassell said. “In fairness to the commission, it’s a bit of a touchy subject. It goes to the heart of the post-Booker debate — are judges now wandering off the guidelines reservation for no good reasons or are they making nuanced assessments of individual defendants?”

A truly comprehensive study likely would reveal that a “great deal” of regional and judge-to-judge disparities exists and is increasing, Bowman said. “That would provide an impetus for some kind of tightening up of the rules, and the commission under present leadership is not crazy about that idea,” he said. “The judiciary doesn’t want it; the defense bar doesn’t want it, so one doubts that kind of study is going to be met with any enthusiasm. That doesn’t mean it won’t do a study; it just won’t ask the questions DOJ wants.”