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In the nine months since they were freed from the strictures of the U.S. Sentencing Guidelines, judges in the 3rd Circuit have wasted no time handing out lighter sentences. Before the U.S. Supreme Court’s rulings in U.S. v. Booker and U.S. v. Fanfan, judges could depart from the guidelines only by citing a reason listed in the federal guidelines manual, such as substantial assistance to the government. Since the guidelines became advisory in January, 3rd Circuit judges departed downward from the guidelines in 47.5 percent of the cases — a third of the time without citing a specific reason, according to a U.S. Sentencing Commission report. That compares with a 36.8 percent downward departure rate nationally, one-fourth of which is without a cited basis. Judges also can use their newfound freedom to issue sentences stricter than the guidelines, but that happened in only 1.1 percent of cases nationally and 1.3 percent in cases from the 3rd Circuit, which includes New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands. More lenient still was the 2nd Circuit, where 50.5 percent of sentencings were downward departures and a total of 18.1 percent were for unstated bases. Adherence to the guidelines was staunchest in the 5th Circuit, consisting of Texas, Louisiana and Mississippi, where judges sentenced within the ranges in 71.6 percent of cases in 2005 and went below the range without giving a specific reason in 6.7 percent of cases. Judges continue to issue departure sentences under the pre- Booker procedure in which they cite reasons listed in the guidelines, but less frequently than before the Supreme Court ruling. Substantial assistance departures and other government-sponsored departures made up 23.8 percent of the cases nationally, up from 22.2 percent. Those departures made up 29.6 percent of 3rd Circuit cases this year, virtually unchanged from the rate two years ago. Attorneys who have reviewed the Sentencing Commission data were less surprised by the number of departures from the guidelines than the incidence of adherence to them, which they say could take the wind out of calls for Congress to revoke judges’ sentencing discretion. “It’s interesting to note that it appears the courts have not had a wholesale abandonment of the guidelines,” says Robert Bonney Jr., president of the Association of Criminal Defense Lawyers of New Jersey. “From where I sit, I think that’s a good thing.” Chatham, N.J., criminal defense lawyer Alan Zegas says one reason for continued adherence is that the guidelines have become ingrained in judges’ modus operandi. “Judges are so accustomed to following them that they will continue to do that, although they have discretion to do whatever they believe is appropriate,” he says. “Where a judge departs more than a prosecutor thinks is just, a prosecutor can take an appeal. Judges, knowing that, err on the side of conservatism.” Richard Coughlin, the federal public defender for New Jersey, disagrees. “I don’t think … that most judges are troubled by the range that’s recommended in a particular case,” he says. “I think they don’t want to be perceived as going crazy with this authority. They don’t want to waste their discretion, but at the same time, they want to use it in those cases where it’s called for.” Michael Drewniak, a spokesman for U.S. Attorney Christopher Christie, declines to comment other than to call the report “an early snapshot from which accurate conclusions are hard to draw.”

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