Judges Use 'Booker' Ruling for Sentencing Flexibility

Since the Supreme Court's ruling in United States v. Booker earlier this year, judges have exercised more latitude in determining prison terms. But the Congress or Justice Department may yet step in and reinforce mandatory federal guidelines.

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The Supreme Court ruled earlier this year that federal sentencing guidelines are discretionary. That gave judges much more latitude to impose the prison term that they think appropriate for each defendant. NPR's Ari Shapiro reports on how judges have been using that power.

ARI SHAPIRO reporting:

We are now living in the post-Booker world. The big difference between this and the pre-Booker world is that now, because of the Supreme Court's decision in the United States vs. Booker, judges are no longer required to follow federal sentencing guidelines. The drug dealer whose case led to this shift is 51-year-old Freddie Booker. His lawyer, Chris Kelly, says the man has become something of a hero among criminal defendants.

Mr. CHRIS KELLY (Lawyer): As he was riding on the prison bus, actually, to get back to Madison to be resentenced, he met a number of people who patted him on the back and shook his hand and said, `Hey, you're Freddie Booker. You're the guy who made it possible for my sentence to be reduced.' In one case, somebody told him that his sentence had been cut by 10 years.

SHAPIRO: Since the Supreme Court decided Booker and a related case in January, thousands of defendants have gone before judges for resentencing. The majority of those sentences stayed within the now discretionary federal guidelines. Ohio State University law Professor Doug Berman has been following sentencing issues closely. He says it's too early to identify clear patterns in how judges are now using the sentencing guidelines, but he says the cases in which judges are most inclined not to follow the guidelines do seem to fall into particular categories.

Professor DOUG BERMAN (Ohio State University): Those are the cases, non-violent offenders, first offenders, cases in which drug quantities are driving up the sentence dramatically where judges seem more inclined to vary from the guidelines' advice.

SHAPIRO: Those defendants generally receive shorter sentences than the guidelines recommend. There are fewer defendants getting longer sentences because of the Booker ruling, but there are some such instances, one of them in a case that the court considered along with Booker. This week, Ducan Fanfan went back before a judge for post-Booker resentencing on drug charges.

Ms. ROSEMARY SCAPICCHIO (Lawyer): His sentence went from 78 months to 210 months.

SHAPIRO: Rosemary Scapicchio is Fanfan's lawyer. She says despite the fact that Booker actually hurt her client, she thinks the Supreme Court's decision will generally help defendants.

Ms. SCAPICCHIO: Now judges can take into consideration things like family circumstances, whether or not this was out of character for this particular defendant to have committed this particular crime where before, that wasn't something that judges could consider.

SHAPIRO: There's a big unknown here and that's whether Congress or the Justice Department will take action to re-enforce sentencing guidelines. Neither has made significant steps in that direction yet, but both have expressed concerns about this return to judicial empowerment. And as for the man who brought about this sentencing revolution, Freddie Booker, after the prison bus arrived at the Madison courthouse, Booker went in for resentencing. The judge in the case handed down the exact same sentence as he had the first time. Booker is now serving 30 years in prison. Ari Shapiro, NPR News, Washington.

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