REPORT ON THE IMPACT OF

THE BOOKER CASE ON THE WORKLOAD

OF THE FEDERAL JUDICIARY

PREPARED FOR THE 

U.S. HOUSE AND SENATE COMMITTEES ON APPROPRIATIONS

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS

LEONIDAS RALPH MECHAM, DIRECTOR

June 2006
1

 542 U.S. at 305 n. 9.

2 Blakely, 542 U.S. at 324-26 (O’Connor, J., dissenting); id.,at 346-47 (Breyer, J., dissenting).

REPORT ON THE IMPACT OF THE BOOKER CASE ON THE 

WORKLOAD OF THE FEDERAL JUDICIARY

INTRODUCTION

The Administrative Office of the United States Courts has been asked to report on

changes in caseload, increases in workload, and new trends resulting from the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005) (Booker). The request was included in

the report of the Senate Appropriations Committee (S. REP. NO. 109-109) and the Conference

Report (H. REP. NO. 109-307) accompanying the fiscal year 2006 appropriations legislation for

the Departments of Transportation, Treasury, and Housing and Urban Development, the

Judiciary, District of Columbia, and Independent Agencies. This report responds to the request

by reporting relevant statistics, describing the additional work that federal courts have

experienced, and analyzing the short-term and long-term impact of Booker in the context of the

Supreme Court case law leading up to it.

I. THE SUPREME COURT’S DECISIONS IN BLAKELY AND BOOKER 

The January 2005 decision in Booker was preceded by two other landmark Supreme

Court cases addressing the constitutionality of sentencing practices. In Apprendi v. New Jersey,

530 U.S. 466 (2000) (Apprendi), the Court held that the Fourteenth Amendment requires that any

fact increasing a criminal penalty beyond the prescribed statutory maximum be submitted to a

jury and proven beyond a reasonable doubt.

In Blakely v. Washington, 542 U.S. 296 (2004) (Blakely), the Supreme Court extended

that principle and held that the defendant’s Sixth Amendment right to trial by jury was violated

when a state court imposed an above-guidelines sentence based on facts (other than a prior

conviction) that had been neither admitted by the defendant nor found by a jury beyond a

reasonable doubt. The Court said in Blakely that the federal sentencing guidelines were not

before it and expressed no opinion on them.1

 But two dissenting opinions emphasized the

similarity of the Washington State guidelines at issue in Blakely to the federal sentencing

guidelines and those of other states. Thus, they warned, Blakely would cast doubt on them all,

jeopardize every sentence imposed under them, and wreak havoc on courts across the country.2

Federal district judges immediately had to face Blakely’s potential impact on all the cases

before them. Many judges continued to apply the federal guidelines in their intended fashion,

but many delayed imposing sentences until the law could be clarified in their circuit. Some

district judges began asking juries to determine all facts that could result in increasing a

defendant’s sentence rather than doing so themselves. Eventually, most courts of appeals

addressing the issue held that Blakely did not affect the constitutionality of the federal sentencing

guidelines, but two circuits decided that the federal guidelines did in fact violate the Sixth

Amendment.
3 Booker, 543 U.S. at 262-68.

4

 Habeas corpus is a procedure for bringing a person before a court, most often to ensure that the

person’s imprisonment or detention is legal. Prisoners convicted in state court may file an action in

federal court under 28 U.S.C. § 2254 to challenge the legality of their state custody under the U.S.

Constitution or federal law. Federal prisoners may challenge their federal sentence by filing a motion to

vacate the sentence under 28 U.S.C. § 2255, often referred to as a federal habeas corpus petition.

2

In January 2005, the Supreme Court resolved the matter in United States v. Booker, 543

U.S. 220 (2005), by extending the Blakely holding to the federal sentencing system. The Court

held that mandatory application of the federal sentencing guidelines violates a defendant’s right

to trial by jury under the Sixth Amendment. After severability analysis, the Court struck down

two provisions of the Sentencing Reform Act of 1984 — 18 U.S.C. §§ 3553(b)(1) and 3742(e)

— that had required courts, absent limited circumstances justifying a departure, to impose a

sentence within the applicable range specified by the federal guidelines.

The practical effect of Booker was to render the federal guidelines advisory, rather than

mandatory. Accordingly, district judges must now consider the guidelines alongside the other

sentencing factors identified in the Sentencing Reform Act at 18 U.S.C. § 3553(a), such as the

defendant’s personal history and characteristics. The sentences they impose are subject to

review by the courts of appeals for reasonableness.3

The impact of Booker was felt almost immediately by the federal courts. On the day it

issued the decision, the Supreme Court remanded approximately 400 affected cases to the courts

of appeals. Thousands of inmates began to seek reconsideration of their pre-Booker sentences,

both in direct criminal appeals and habeas corpus petitions,4 contending that they would have

received a lesser sentence had the sentencing court considered § 3553(a) factors. In addition, the

courts of appeals remanded many cases back to the district courts for resentencing.

In those cases where the defendant had not yet been sentenced — and in all new cases —

the district courts have had to adjust their sentencing practices to comply with Booker and the

now-advisory nature of the guidelines. As expected, district courts took different approaches on

how much weight to give the guidelines and what evidentiary standards to apply to fact-finding

at sentencing. Eventually, though, all the courts of appeals held that, after Booker, the district

court must first calculate the applicable guidelines range before it may consider whether the

other § 3553(a) factors might warrant a sentence outside the guidelines in a given case. Many

other important legal issues, however, remain to be resolved as the cases continue to make their

way through the appellate process.

II. SUPPLEMENTAL FUNDING REQUEST

Within weeks of the Booker decision, Congress requested an estimate of its economic

impact on the judicial branch workload. In March 2005, the President transmitted the judiciary’s

request for $91.3 million in supplemental Booker-related funding. The request included $30

million for workload increases in the district courts and courts of appeals, $60 million for
5

 All analysis in this report is based on caseload data for the 12-month periods ending March

2004, March 2005, and March 2006. References to 2006 data, for instance, relate to statistics for the

3

increased work by federal defenders and Criminal Justice Act (CJA) panel attorneys, $0.9

million for the U.S. Sentencing Commission, and $ 0.4 million for the Federal Judicial Center. 

These estimates were predicated on the best information available at the time, and although

subsequent developments intervened with respect to certain projected costs, the predicted

increases in the workload of court staff resulting from Blakely and Booker have proven

reasonable.

While the Senate included $65 million in its version of the supplemental bill, the

conference agreement provided no funding in the final version of the fiscal year 2005

Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and

Tsunami Relief (Pub. L. No. 109-13). Accordingly, the judiciary has handled the increased

workload flowing from Booker without any additional funding.

III. IMPACT ON THE COURTS

The Supreme Court’s decisions in Blakely and Booker have had a significant impact on

the workload of the federal judiciary in the past two years — an impact expected to be felt for

another two years. Thousands of defendants who had already been sentenced filed appeals or

habeas corpus petitions contesting the legality of their sentences, and thousands of cases already

on appeal were remanded for resentencing. Habeas corpus filings by federal prisoners sentenced

before Blakely and Booker have now largely ended, but the courts must continue to clear the

backlog of these cases over the next couple of years. State prisoners, however, will continue to

file habeas corpus petitions in federal court for another year or two because of the requirement

that they first exhaust state remedies. Direct appeals of federal sentences after Booker will

continue indefinitely, and many legal issues remain to be decided on appeal.

For new federal criminal prosecutions, there will continue to be some additional work for

the district courts. Some criminal cases will be more complex because lawyers, probation

officers, and judges will have to address sentencing factors that had been discouraged or

prohibited in the past. This will result in additional work in connection with presentence

investigations, motions and briefs, sentencing hearings, Judgment and Commitment forms, and

Statement of Reasons forms.

A. Courts of Appeals

1. Caseload Statistics

As a result of Booker, more cases were filed in the courts of appeals than in previous

years. The increase, though, began in July 2004, after Blakely was decided and six months

before Booker.

5

 In the courts of appeals: 
period from April 1, 2005, to March 31, 2006. Pre-Blakely data for 2004 (before July 2004) serve as a

baseline. Nationally, criminal filings in the district courts did not increase in 2005 and 2006. Therefore,

the increase in criminal appeals in those years was disproportionately large and likely resulted from issues

raised by Booker. Also, federal habeas corpus petitions pursuant to Booker had to be filed by the 12-

month anniversary of the decision on January 12, 2006, when the period of limitation ran out on these

cases. Thus, the 2006 data include all federal habeas corpus petitions resulting from pending criminal

cases, thus capturing the bulk of the immediate impact of Booker.

6

 By statute, a prisoner may file a “second or successive” habeas corpus application only in

limited circumstances. The prisoner must first move in the appropriate court of appeals for an order

authorizing the district court to consider the application. 28 U.S.C. § 2244(b).

7

 All statistics were generated from the data maintained by the Administrative Office of the U.S.

Courts (AO). Each month the AO receives its data via electronic file transfer from the courts’ case

management systems. Numbers not contained in the standard tables produced by the AO have been

rounded to the nearest hundred for use in this report.

4

• filings increased for direct criminal appeals,

• filings increased for habeas corpus petitions,

• filings increased for second or successive motions seeking permission to file

habeas corpus petitions,6

• more cases were remanded by the Supreme Court,

• the pending caseloads of the appellate courts have grown, and

• the time needed for the appellate courts to dispose of appeals has increased.

The courts of appeals received more than 11,600 Blakely and Booker-related additional

appeals between July 2004 and March 2006 — 6,400 direct criminal appeals, 1,500 federal

habeas corpus petitions, and 3,700 second or successive motions seeking permission to file

habeas corpus petitions.7 In addition, the courts of appeals received 843 cases remanded by the

Supreme Court, more than 20 times the 35 to 40 remands ordered in a typical pre-Blakely year. 

Over 6,000 Blakely and Booker appeals were still pending on March 31, 2006 — 10.4 percent of

all appeals pending in the courts of appeals.

Booker significantly increased the appellate caseload in 2005, and the filing of direct

criminal appeals should continue at an increased level through 2006 and 2007. The increases

have come at a time when funding for staff resources has not kept pace, and the additional

workload has negatively impacted the operations of most of the courts of appeals. Nationally,

pending cases jumped dramatically from 46,976 on March 31, 2004, to 58,801 on March 31,

2006 — an increase of 25 percent.

In addition, the median times for the courts of appeals to dispose of appeals from the

district courts rose from 10.4 months in the year ending March 2004, to 11 months in the year

ending March 2005 — an 18-day increase in processing time — and to 12.2 months in the year

ending March 2006 — an additional 36 days. The longer disposition times were a result of the
5

additional work associated with the influx of new filings and the fact that many courts delayed

resolution of cases until key legal questions raised by Blakely and Booker had been answered.

The increase of 54 days in median disposition times from 2004 to 2006 is very

significant. During the four-year period before Blakely (1999-2003), the national median

disposition time from the filing of the notice of appeal to judgment on the merits had been

trending downward, declining from 11.8 months to 10.6 months. But by March 2005, the trend

had reversed, and by March 2006, the gains had been undone, as the national median disposition

time increased to 12.2 months.

The rise occurred at every stage of processing for which records are kept. Moreover,

there was a domino effect on the courts of appeals, as the increased work in prisoner cases

affected not only criminal and prisoner appeals, but also non-prisoner civil appeals. As a result,

non-prisoner civil litigants have been forced to wait longer to have their cases resolved as the

median disposition time of their cases rose by 36 days from 2004 to 2006. 

2. Court Procedures

The courts of appeals varied in the ways they handled criminal cases during the period

between Blakely and Booker. Some delayed oral argument and disposition in sentencing

appeals. Other courts stayed all criminal cases. Still others stayed briefing requirements (and

later asked for additional briefing after Booker was decided).

After Booker, some courts of appeals reviewed all their pending cases that might be

suitable vehicles to address Booker issues. They then invited supplemental briefing by the

litigants and proceeded to hear the cases. This required the staff attorneys and clerk’s office

personnel to identify and categorize cases by issue and prepare them for disposition once the

court issued a controlling, published authority. Extensive work was needed because of the sheer

volume of cases, the variety of procedural postures of the different cases, and the complexity and

novelty of some of the issues. The concentration of so much additional staff work necessarily

diverted attention from other parts of the courts’ criminal and civil dockets.

In addition to the increased processing time, law clerks, staff attorneys, and clerk’s office

personnel were impacted by the complexity of issues presented in many of the cases. The impact

was felt in the courts’ schedules for oral argument, motions panels, and screening panels,

directly affecting the work of the appellate judges.

The work has been shouldered in large measure by the clerk’s offices and the staff

attorney offices. From 2004 to 2006, funding for staff of these two offices has not kept pace

with the increases in overall caseload. The net result is that many cases and many tasks simply

were delayed and added to the backlog.

The judiciary’s request for supplemental funding in March 2005, which covered an 18-

month period, included $30 million to meet staffing needs relating to Blakely and Booker in the
8

 Pro se cases are those in which the plaintiff or petitioner files without an attorney’s assistance.

6

district and appellate courts. Staff and related costs associated with just the 11,600 new appeals

directly attributable to those cases represented $28 million. Thus, the request for supplemental

funding was not only reasonable, but actually lower than the workload would warrant.

3. Clerk’s Offices

The influx of 11,600 new filings and 843 remands caused by Blakely and Booker

significantly increased the paper flow and case management responsibilities of the clerk’s

offices, which process all court filings. Moreover, the courts often ordered additional briefing,

and the parties filed numerous motions for supplemental briefing, often in cases already

submitted to a panel for decision. In cases remanded to the district courts for resentencing in

light of Booker, additional processing by the clerk’s offices was required when the cases were

later appealed.

Some courts of appeals did not automatically stay all criminal appeals and instead

decided questions of additional briefing and motions for stay on a case-by-case basis. This

resulted in substantially longer processing times. Clerk’s offices had to develop new internal

procedures for handling these cases and to track and categorize cases and issues. This was a

very labor-intensive process, requiring much coordination with judges’ chambers. Some courts

modified their case management systems to better track and report statistics on these cases.

4. Staff Attorney Offices

Staff attorney offices have been particularly hard hit because they are the legal staff who

focus on pro se prisoner cases,8

 direct criminal appeals, and habeas corpus cases. They have

performed much of the substantive legal analysis that has assisted the courts in addressing the

new and often complex issues presented by Blakely and Booker. Staff attorneys report that even

with substantial uncompensated overtime and increased levels of productivity by their staff, they

can barely sustain the workload demands. For example, individual staff attorney offices report: 

• a 113 percent increase in cases pending review by screening panels; 

• a 97 percent increase in second or successive petitions filed during 2005 as

compared to the previous year; 

• from November 1, 2005, to January 30, 2006, a 450 percent increase in successive

applications, as compared to the same period in the prior year;

• a near-tripling of the percentage of criminal cases assigned to the office since

Blakely and Booker; and

• a 23 percent increase in the number of cases received during 2005 decided

without oral argument.
7

Staff attorney offices have reported delays in resolving cases. One office reports that its

productivity had increased by 25 percent during 2005, but that the enhanced output barely

scratched the surface of the 80 percent increase in the office’s pending caseload, most of which

is attributable to Blakely and Booker. Staff attorneys also anticipate substantial additional work

in cases that have been remanded to the district courts and then subsequently return to the court

of appeals on sentencing issues.

Staff attorneys also report on the impact of the thousands of second or successive habeas

corpus applications filed. The number of these petitions filed more than doubled in 2005 and

increased another 50 percent in 2006, as compared to 2004 filings (i.e., pre-Blakely). Although

these matters are not particularly time-consuming on an individual basis, they are time sensitive,

with a statutory 30-day limit. A consequence of the increased volume of these petitions is that

individual staff attorneys, attorney supervisors, and support staff must interrupt other work to

process and address these petitions on an expedited basis, causing a disruption in the production

of all other civil and criminal appeals.

The delays resulting from growth in workload directly contributed to the increase in

median disposition time for appeals (discussed above). From 2004 to 2006, the median

disposition time for appeals rose by 54 days — a significant increase. The work assigned to staff

attorneys provides one example of this measurable increase. The median disposition time for

processing appeals from the date the appellee’s last brief is filed to the date that the appeal is

submitted to a panel (for oral argument or for resolution without argument) increased by 24 days. 

This statistic reflects the interim during which cases often are reviewed by the staff attorneys.

 The workload situation has been exacerbated by staff vacancies. Due to the uncertainty

of future funding, many appellate court staff attorney offices have been reluctant to fill attorney

positions that are badly needed now to clear the Blakely and Booker caseload because there is no

assurance that funding will be available in FY 2007 and 2008 to retain new hires. The practical

inability to hire and retain sufficient staff to handle the current workload surge is affecting the

overall disposition of cases in the courts.

B. District Courts

1. Caseload Statistics

The district courts also experienced an increase in workload as a result of Booker:

• filings in district court increased for habeas corpus petitions filed by state

prisoners;

• filings increased for habeas corpus petitions and motions to vacate sentence filed

by federal prisoners;

• more cases were remanded or reversed by the courts of appeals;

• more criminal defendants were tried by a jury;
9

 92,761 defendants were prosecuted in 2004, 92,672 in 2005, and 91,203 in 2006.

8

• the pending caseload of the district courts has grown; and

• the time needed to dispose of criminal cases in the district courts has increased.

Between July 2004 and March 2006, the district courts received 10,300 new Blakely and

Booker-related cases — 6,800 federal habeas corpus petitions or motions to vacate sentence and

3,500 state habeas corpus petitions. In addition, the courts of appeals remanded or reversed

5,000 criminal and habeas corpus appeals to the district courts during that period — 264 percent

more appeals than the 1,400 they remand or reverse in a typical year. On March 31, 2006, 2,800

habeas corpus petitions were still pending in the district courts — 1,500 by federal prisoners and

1,300 by state prisoners.

As a result of Blakely and Booker, significantly more criminal cases were decided by a

jury during the year ending March 2006 than in either 2004 or 2005 — 2,751 in 2004, 2,810 in

2005, and 3,534 in 2006 — a 28 percent jump from 2004 to 2006. Since the Blakely decision in

June 2004, criminal jury trial days rose by 1,500, from 16,000 in 2004 to 17,500 in 2005. The

one-year increase was most likely the result of judges bringing additional sentencing factors to a

jury in light of the Blakely decision.

Even though the national total of defendants prosecuted in the district courts decreased

slightly between 2004 and 2006,9

 the median disposition times for criminal cases in the district

courts have risen significantly since Blakely was decided in July 2004. Largely as a result of

Blakely and Booker, it took longer to decide cases in 2005 and in 2006 than it did in 2004. Many

judges and courts simply postponed sentencing decisions until their respective circuits clarified

the law following Booker. The median disposition time for criminal cases rose by 21 days —

from 6.3 months to 7 months, and the district courts are still working through the backlog.

2. Court Procedures

The increase in the number of jury trials is only the most obvious effect of Booker on

court procedures. The advisory nature of the sentencing guidelines has resulted in judges and

courtroom staff devoting more time to sentencing hearings in many cases. Work in the district

clerk’s offices and probation offices has also increased significantly as a result of Booker.

District courts saw both an increase in uncompensated overtime that staff had to devote

to complete the additional workload caused by Booker as well as an increased backlog in other

work. But no separate records in district clerk’s offices specifically gauged the effect of Booker. 

Courtroom deputies processing prisoner petitions, for instance, often did not focus on pre- and

post-Booker differences in the amount of work involved. Similarly, court reporters and court

interpreters may not have specifically attributed workload increases to Booker.
9

District judges noted that median disposition times were rising due in large part to

Booker issues. The judges reported spending more time and effort on preparing for sentencing

hearings and on the hearings themselves. The increase can be attributed, in large measure, to the

Booker holding that district judges have discretion in applying the sentencing guidelines. As incourt time for judges increases, so does the time required of court support staff.

3. Clerk’s Offices

Calculating the 10,300 Booker-related filings against the work measurement formulas

used to allot staff funding to the courts, the added staff work would yield an annual cost of more

than $3 million. The work in the clerk’s offices includes opening files, scanning documents into

the court’s electronic database, accepting filing fees or processing in forma pauperis

applications, assigning cases to the judges, closing cases, and preparing statistical reports.

The great majority of prisoners filing habeas corpus petitions, as opposed to criminal

appeals, file them in forma pauperis (i.e., asking the court for a waiver of the case filing fees). 

To proceed as a pauper without prepaying fees and costs, a litigant must supply an affidavit

establishing inability to pay. Staff of the clerk’s office must review the affidavit to ensure that it

is in proper form and conforms to the rules of civil procedure and to local court rules. Special

provisions are in effect for in forma pauperis actions filed by prisoners. They require clerk’s

office staff to accept all papers included with prisoner filings, including the envelope, in order to

allow a judge to make a threshold determination of indigence.

In addition, extra staff work was required in the criminal cases already pending in the

district courts when Booker was decided. Many of those cases required the filing of superseding

indictments, revision of sentencing reports, and preparation of additional jury instructions. The

staff work connected with these activities is not measured in caseload filings data, nor is it

included in staffing formulas. Nevertheless, it was substantial in total and contributed to national

increases in the processing times of criminal cases.

District court clerks report that Booker has made it more difficult and time-consuming for

courtroom deputy clerks and other court staff to complete the Judgment and Commitment and

Statement of Reasons forms. The newly revised Statement of Reasons form increased in length

from four pages to seven, prolonging the time it takes for staff to prepare and review it. Clerks

report that litigants have filed more sentencing memoranda, and sentencing findings often are

more complicated than before Booker. In some cases, moreover, it is necessary to transcribe

portions of the sentencing hearing to assist court staff in preparing the sentencing forms. Clerks

also report that judges spend more time in the courtroom at a number of sentencing hearings,

creating additional workload for the courtroom deputies, court reporters, and court interpreters.

4. Probation Offices

Since Booker, district judges have asked probation officers to gather additional

information in their presentence investigations and to prepare lengthier presentence reports that
10

address the additional sentencing factors listed in 18 U.S.C. § 3553(a). Judges have made this

request in individual cases, in certain categories of criminal cases, or in all criminal cases.

Probation officers report that many presentence investigations and reports take longer to

prepare than before Booker. Among other things, they have to conduct more collateral

interviews and home inspections as part of the presentence investigation process. In addition,

use of the newly revised Judgment and Commitment and Statement of Reasons forms has

required additional training for probation officers and development of informational and

educational materials for the judges.

Many sentencing hearings now take longer after Booker because judges now may

consider § 3553(a) factors that had been discouraged or prohibited in the past, such as the

defendant’s personal history and characteristics. Moreover, defense attorneys are increasingly

advocating for their clients based on these factors.

Booker has resulted in 5,000 remands or reversals of criminal and habeas corpus appeals

from the courts of appeals for resentencing. Once a case is remanded, the assigned probation

officer must construct a new court file, review the remand itself, review the case file, read the

submissions, draft new sentencing recommendations, research any new issues raised, meet with

the judge, travel to attend the resentencing hearing, and draft another Judgment and Commitment

form, commitment order, and Statement of Reasons form. Then the clerical staff of the

probation office have to resubmit the necessary documents and information to the Sentencing

Commission and the Bureau of Prisons.

C. Federal Defenders and Panel Attorneys

The Booker decision also has had a significant impact on the workloads of federal

defenders and CJA panel attorneys. Although precise dollar figures are difficult to extract, the

cost has been lower than predicted in March 2005. During the period between the Blakely and

Booker decisions, federal defenders and panel attorneys represented a large number of

defendants at sentencing and on appeal. Then, following Booker, they represented defendants in

hundreds of cases remanded for resentencing.

The increase in workload for appellate and district court staff was also reflected in

workload increases for the federal defenders who handle those cases on appeal and then on

remand back to the district courts. For example, between 2004 and 2006, largely as a result of

Blakely and Booker, the number of sentencing guideline appeals jumped by more than 41

percent, from 10,238 appeals to 14,462.

Nevertheless, federal defender offices were able to respond to the additional workload

associated with the large increase in appellate cases without additional staff, largely because

their work on other, new criminal cases in the district courts decreased during the same time

period. From 2004 to 2006, new criminal prosecutions decreased nationally from 92,761

defendants to 91,203 defendants. Similarly, from 2005 to 2006, new trial-level assignments to
11

federal defender organizations under the Criminal Justice Act decreased from 66,000 to 62,100. 

These decreases were probably due, at least in part, to the U.S. attorneys’ offices being

preoccupied with the same post-Booker workload.

In addition, the workload that most defender offices expected as a result of Booker

proved not to be as great as anticipated, particularly in those cases where the defendant had

already been sentenced before Booker, because the courts of appeals all held eventually that

Booker did not have retroactive effect on sentences imposed before it was decided.

In addition to working through the backlog of cases that could proceed after Booker,

defense counsel spent additional time investigating and presenting mitigating § 3553(a) factors

previously discouraged or unavailable under the mandatory guidelines system. The initial

estimate by defenders of the additional time per case upon which the 2005 request for

supplemental funding was based, however, has not been fully realized. Congress requested the

estimate soon after the Booker decision was announced and before there was any consensus

within the legal community regarding its meaning or any significant post-Booker litigation. 

Consequently, the initial projection was based on the best information available at the time —

rough estimates by defenders of the additional time per case, on average, that Booker would

require and the possibility of retroactive effect. Those time estimates formed the basis of the $60

million in supplemental funding requested for defender services to address the impact of Booker

in 2005 and 2006.

Based upon instructions that estimates of requirements were to be for an 18-month

period, the $60 million figure assumed that $20 million would be required in the second half of

FY 2005 and $40 million in FY 2006. In September 2005, after further analysis based on actual

experience by the defenders, Congress was advised that FY 2006 supplemental requirements

would only be $6.5 million. Experience to date has shown that the time increases per case

appear to have been relatively marginal. This most likely reflects: (a) effective national training

efforts leading to efficiencies in integrating Booker into defenders’ daily practice; (b) a delayed

response to the changed circumstances created by Booker, which may eventually result in more

substantial time increases as the legal changes play out; or (c) some combination of these and

other factors.

Even so, the significant increases in direct appeals and habeas corpus petitions and the

length of time that it has taken the courts to resolve cases has directly affected the complexity

and extent of appointed counsel’s workload post-Booker.

D. Federal Judicial Center

The Federal Judicial Center has conducted a number of Booker-related programs for

judges and federal probation officers. In February 2005, it broadcast a Federal Judiciary

Television Network (FJTN) program on the Booker decision that analyzed its immediate impact

on federal sentencing.
12

In July 2005, the Center, under the direction of the Criminal Law Committee of the

Judicial Conference, and with the cooperation of the Sentencing Commission and the

Administrative Office, conducted a National Sentencing Policy Institute devoted to

developments in the wake of Booker. More than 100 judges and representatives of the executive

and legislative branches attended. Plenary sessions were videotaped and later broadcast over the

FJTN, and sessions on Booker were added to the agendas for several workshops for judges.

The Center’s 2005 national conference for chief district judges included a focus on postBooker sentencing developments. The 2006 national conference for chief district judges and the

Center’s three national workshops for district judges in 2006 included updates on sentencing

trends, reporting requirements, and other developments relating to Booker.

In mid-July 2006, the Center and the Criminal Law Committee will conduct another

National Sentencing Policy Institute for judges, federal defenders, probation officers, U.S.

attorneys, and representatives of the Bureau of Prisons. The topic will be Booker-related

developments, including sentencing patterns and appellate review of sentences.

E. U.S. Sentencing Commission

After Booker, the Sentencing Commission placed an emphasis on maintaining a real-time

data collection, analysis, and reporting system to assist the federal criminal justice community in

developing national sentencing policy in the wake of the Supreme Court’s decision. The

Commission now releases general sentencing statistics on an almost monthly basis. In addition,

it has prepared a comprehensive report on sentencing trends and practices during the year

following the Booker decision. To accomplish these tasks, the Commission used existing

personnel resources supplemented by a temporary summer workforce.

 

The Commission also has implemented fully its electronic document submission system,

which allows district courts to transmit electronically the five sentencing documents that must be

sent to the Commission under 28 U.S.C. § 994(w). Currently, 79 districts are either submitting

the required documentation electronically or are about to do so. The Commission expects all 94

districts to be on-line with the Commission within the next year. The Commission will begin

conducting its analysis efforts on-line beginning in June 2006. The Commission also continues

to pursue an aggressive policy agenda, expansive research, and training programs.

IV. LONG-TERM IMPACT

The courts of appeals expect a continuing impact as a result of Booker in the area of

direct criminal appeals. Already, they have seen an increase in the number of government

appeals from sentencing orders, as well as an increase in appeals taken by defendants. Booker

allows appeals if the sentence is “unreasonable.” Given that a sentence can nearly always be

debated, it is assumed by most that direct criminal appeal rates will remain high.
10 Collateral attacks include habeas corpus petitions and any other requests for post-conviction

relief outside the context of a direct appeal.

11 The U.S. Sentencing Commission reports that a majority of federal criminal defendants

continue to be sentenced post-Booker in conformance with the guidelines. Approximately 86 percent of

the sentences are either within the guideline ranges or are prosecution-sponsored, below-range sentences. 

Final Report on the Impact of United States v. Booker on Federal Sentencing (March 2006), p. 46.

13

The increase in direct criminal appeals that began in July 2004 is expected to continue

through 2008, based on historical data following the Apprendi case. As noted above, by March

31, 2006, the courts of appeals had received 11,600 Booker-related new appeals, 52 percent of

which were still pending. Direct criminal appeals will continue to be filed until the courts of

appeals have addressed all the major issues related to the reasonableness of sentences.

Although habeas corpus petitions (both federal habeas and second or successive

petitions) are now leveling off, Booker issues are likely to continue to be raised in collateral

attacks on sentencing.10 Whether or not the claims prevail in the courts of appeals, the additional

work generated will be borne by court staff. Moreover, a number of appellate clerks predict an

increase in claims for ineffective assistance of counsel for failure to raise Blakely and Booker

issues on direct appeal, again creating additional eventual workload for the appellate courts.

The district courts will likely continue to receive Blakely-related habeas corpus petitions

from state prisoners under 28 U.S.C. § 2254 for the next couple of years, since state prisoners

must first exhaust their appeals in the state courts before they can file in the federal courts. 

Based on historical data following Apprendi, state habeas corpus petitions were filed in the

federal courts for three years following the decision. Since Apprendi, Blakely, and Booker all

addressed similar issues, it is very likely that the pattern seen after Apprendi will occur postBlakely, and that state habeas corpus petitions will likely be filed through 2008.

Once the initial wave of federal and state cases has been disposed of in the district courts

and the courts of appeals, the long-term impact of Blakely and Booker on the federal courts

should be less onerous. The case law will become settled, and judges, attorneys, and court staff

will become used to the new procedures. Nevertheless, broader options are now available in

sentencing, and additional factors will have to be addressed in appropriate cases by attorneys,

probation officers, judges, law clerks, and staff attorneys.11 An increase in the length of some

presentence investigations and reports is likely, and there will be additional complexity in some

sentencing hearings, judgments, and Statement of Reasons forms. Although these realities are

likely to have some marginal effect on judge and court staff workloads, case processing times,

and defense attorney vouchers, it is too early to estimate the impact. In the courts of appeals, it

is anticipated that the number of direct criminal appeals filed will level off as many legal issues

in dispute are resolved, but that the rate of filings will remain higher than the pre-Blakely level.
14

CONCLUSION

 As predicted, the Supreme Court’s decisions in Blakely and Booker have had significant

workload implications for federal court staff, particularly in the first couple of years after the

decisions were rendered. In the months immediately following Blakely and Booker, the federal

courts were asked to process and adjudicate thousands of new claims in both direct criminal

appeals and habeas corpus petitions. Median disposition times for criminal cases have increased

by a month nationally in both the courts of appeals and the district courts, due in large measure

to Blakely and Booker. Meanwhile, the backlog of pending cases in the district and appellate

courts caused by these decisions will take months, and in some instances years, to clear.

The burden of adjusting to the post-Booker federal sentencing landscape generally has

fallen more heavily on the courts of appeals than on other components of the judiciary. The lack

of supplemental funding has forced court staff to scramble to handle the additional workload. 

Although subsequent developments have intervened to make the estimated impact of Booker on

federal defenders and CJA panel attorneys less severe than some initially feared, the predictions

concerning the potential impact on clerk’s offices and staff attorneys have proven reasonable.

Booker will also have some long-range, permanent impact on the workload of the courts,

although that is more difficult to gauge. In appropriate cases, probation officers will continue to

be asked to prepare lengthier presentence reports that address the additional sentencing factors

identified at 18 U.S.C. § 3553(a). Federal defenders and CJA panel attorneys will make

additional arguments and conduct additional investigations in appropriate cases. Sentencing

hearings will take longer on average than they did before Booker. And it will take longer for

court staff to prepare the Judgment and Commitment form and the Statement of Reasons form.

In summary, the federal courts assumed and completed a great deal of additional work as

a result of the Blakely and Booker cases, particularly in the short run. They did so without

additional funding. In fact, court staff faced a “double whammy.” Just as they experienced a

surge of new cases after Blakely and Booker, they suffered reductions in funding in the FY 2004

appropriations, which led to significant staff layoffs across the federal judiciary. Court staff and

federal defenders worked harder and longer to cope with the additional work, but the casedisposition times lengthened, backlogs grew, and other important tasks have been deferred.

The immediate surge of filings following Blakely and Booker has now largely abated. 

But damage has been done to court support offices, and a large backlog remains to be cleared. 

Intensive staff efforts will be required for a couple of more years, and there will be some

lingering, permanent increase in staff work. The inability of the judiciary to obtain supplemental

funding to meet the workload surge created by Blakely and Booker compromised court support

offices, particularly clerk’s offices and staff attorney offices. It is essential to restore the funding

base and return these offices back to the staffing levels that they require to process the ongoing

workload expeditiously and efficiently and to clear the resulting backlog.