Disparity cited in sentence lengths

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.

“It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case,’’ Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.

Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name. But he describes four judges who have increasingly set sentences at below guideline ranges as “free at last judges.’’ He calls two whose sentencing patterns have remained largely unchanged “business as usual judges.’’

The “free at last judges’’ sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote. The “business as usual judges’’ sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.

Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.

Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months. But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants.

“We could have uniformity in the district of Massachusetts if everyone got 10 years for everything,’’ Gertner, who has taught a seminar on sentencing at Yale Law School for the past decade, said in an interview. “But everyone would understand that would not be a sentencing regime that took into account real, meaningful differences between offenders.’’

Gertner criticized Scott’s study as flawed in a memorandum earlier this month when she sentenced Kenneth Whigham, a 46-year-old Boston man, to five years in prison for dealing crack cocaine in the Bromley Heath housing project. The sentence was well below the recommended guideline range of 15 1/2 to 19 1/2 years and the 9 1/2 years recommended by prosecutors.

The advisory guidelines, Gertner wrote, failed to take into account mitigating circumstances in Whigham’s case, including that he had “substantial mental deficits,’’ was addicted to crack, and was a low-level street dealer. Although he qualified as a career offender under the guidelines, she wrote, he was hardly the kind of person Congress had in mind when it created the designation to severely punish career criminals.

“In effect, an outside-the-guideline sentence may not be optional; it may well be essential to prevent both unwarranted disparity and unwarranted uniformity,’’ she wrote.

Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study.

But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said. Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.

Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise.

Scott spent about two years studying the impact of the Supreme Court’s 2005 ruling in US v. Booker and two other cases in 2007 that reinforced the district courts’ sentencing discretion. He used the federal judiciary in Massachusetts as a case study because it is the only one of the country’s 94 district courts that makes key sentencing documents public.

He focused on the 10 judges in Boston, excluding those in Worcester and Springfield, because he wanted to study cases randomly distributed to the group from the same pool. He analyzed sentences meted out from 2001 to 2008, during which each of the 10 judges handed down 175 to 264 sentences.

Until the early 1980s, federal judges enjoyed nearly unfettered discretion in choosing the type and severity of sentences. “The theory was that judges should ‘individualize’ sentences to serve the rehabilitative needs of criminal defendants, ‘almost like a doctor or social worker exercising clinical judgment,’ ’’ Scott writes, quoting a 2004 sentencing memorandum by Gertner.

In practice, however, judges had so much discretion that two defendants sentenced for similar crimes in adjacent courtrooms could get starkly different punishments, he writes. That eroded confidence in the courts and was cited by federal prison officials as a cause of riots among inmates.

To remedy the situation, Congress passed the Sentencing Reform Act of 1984 and created the US Sentencing Commission, which established mandatory guidelines for punishments for different crimes. The framework reduced the disparity among sentences. But the fact that it was mandatory drew sharp criticism from judges. Many complained that the guidelines gave them no leeway to tailor sentences and often lumped dissimilar offenders into the same categories.

The Supreme Court rulings upended all of that, transforming what had been a mandatory framework into an advisory one. But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.

Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months.

“I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development,’’ Scott said.

Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission. The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination. The full Senate is expected to vote shortly.

Jonathan Saltzman can be reached at jsaltzman@globe.com.