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Federal judges gained a significant degree of freedom earlier this year, but most aren’t taking advantage of it. The U.S. Supreme Court, in a January decision, ruled that once-mandatory federal sentencing guidelines must be advisory in order to remain constitutional. Though judges can now deviate from the guidelines if they want to, most have not. As of September, 61.9 percent of all sentences handed down nationwide since the Supreme Court’s decision still fell within the guidelines. Judges ordered a lower sentence on their own initiative (as opposed to prosecutor-sponsored leniency) in only 13 percent of cases. But according to the statistics, which were released by the U.S. Sentencing Commission, there’s significant variation among the 12 circuits. Judges within the the Second Circuit � which includes New York, Connecticut, and Vermont � handed down lower sentences on their own initiative in 25 percent of cases, the highest rate of downward departure in the country. Only 49 percent of Second Circuit sentences this year fell within the guidelines. By comparison, Second Circuit judges stayed within the guidelines in 63 percent of cases in fiscal year 2003. Lending further credence to the stereotype of liberal Yankees and conservative southerners, judges in the Fifth Circuit (which includes Texas, Louisiana, and Mississippi) adhered to the guidelines in 71.7 percent of cases, the highest rate of compliance in the country. Fifth Circuit judges deviated below the guidelines on their own only 9 percent of the time. Not all sentences that depart from the guidelines are initiated by judges; some are sponsored by prosecutors. Generally defendants are rewarded with leniency if they provide substantial assistance to the government, though some sentences are statutorily authorized to depart from the guidelines. This year prosecutors sponsored departures in 24 percent of cases nationwide, compared to 22 percent in fiscal year 2003.

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