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November 23, 2004

Highlights from the Executive Summary of the USSC's 15-year report

I have now had a chance to do a very quick read of the Table of Contents and the Executive Summary the the US Sentencing Commission's 15-year report (basics here).  I am already quite impressed with what I see.

Though it will take a lot of time (and a lot of help from others) for me to consume this massive work — which has, to its great credit, lots and lots of data — I thought it valuable to highlight some of the highlights from the report's executive summary.  With headings that I have added, here's a list of 10 findings/quotes taken directly from the text of the 15-year report's Executive Summary (sorry for the length, but I wanted to try to capture all the important context):

  • OVERALL SEVERITY: Under the guidelines, punishment became not only more certain but also more severe. The proportion of probation sentences declined, use of restrictive alternatives such as home confinement increased, and the rate of imprisonment for longer lengths of time climbed dramatically compared to the preguidelines era.... The abolition of parole, the enactment of mandatory minimum penalty provisions, and changes in the types of offenders sentenced in federal court, along with implementation of the guidelines, all contributed to increased sentence lengths. The influence of each of these factors varies among different offenses.

  • DRUG OFFENSE SENTENCING SEVERITY: There has been a dramatic increase in time served by federal drug offenders following implementation of the [Anti-Drug Abuse Act of 1986] and the guidelines. The time served by federal drug traffickers was over two and a half times longer in 1991 than it had been in 1985, hovering just below an average of 80 months. In the latter half of the 1990s, the average prison term decreased by about 20 percent but remained far above the historic average. The decrease in time served during the late 1990s is a result of a trend toward less serious offenses and a greater incidence of mitigating factors in cases sentenced.

  • ECONOMIC OFFENSE SENTENCING SEVERITY: The most striking trend in economic offenses is a shift away from simple probation and toward intermediate sentences that include some type of confinement. The use of imprisonment for economic offenders also has increased steadily throughout the guidelines era.

  • UNWARRANTED JUDICIAL DISPARITY: The most recent and best ... studies found significant reductions in the unwarranted influence of judges on sentencing under the guidelines compared to the preguidelines era.... The influence of judges [on disparity] was reduced by the guidelines for drug, fraud, firearm, and larceny offenses, though immigration or robbery offenses did not show a reduction.

  • OTHER SOURCES OF DISPARITY:  [A] variety of evidence developed throughout the guidelines era suggest that the mechanisms and procedures designed to control disparity arising at presentencing stages are not all working as intended and have not been adequate to fully achieve uniformity of sentencing.  The Commission, as well as outside observers, have reported that plea bargaining is reintroducing disparity into the system.

  • IMPACT OF DEPARTURES: The Commission analyzed the influence of [various other] mechanisms on sentencing variations [and] substantial assistance departures accounted for the greatest amount of variation in sentence lengths — 4.4 percent. Other downward departures contributed 2.2 percent, while upward departures contributed just 0.29 percent. Only 0.07 percent of the variation was explained by use of the guideline range above the guideline minimum. Because data is unavailable on the types of assistance offered by defendants, or the nature of the mitigating circumstances present in cases, it is not possible to determine how much of these sentencing variations represent unwarranted disparity.

  • SUBSTANTIAL ASSISTANCE DEPARTURES: Even though the rate of substantial assistance and other downward departures is similar — 17.1 percent and 18.3 percent, respectively — substantial assistance departures account for more variability in sentence length because the extent of departure for substantial assistance is on average greater. Commission research found varying policies and practices in different U.S. attorney’s offices regarding when motions for departures based on substantial assistance were made, and in the extent of departure recommended for different forms of assistance.

  • RACIAL/ETHNIC DISPARITY: Across five recent years, a typical Black male or Hispanic male drug trafficker had somewhat greater odds of being imprisoned when compared to a typical White male drug trafficker. No differences were found in non-drug cases.  The odds of a typical Black drug offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical White offender, while the odds of a Hispanic drug offender are about 40 percent higher.... Some of these differences might be explained by legally relevant considerations for which we have no data.

  • GENDER DISPARITY: Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders are sometimes treated differently based on their gender. Gender effects are found in both drug and non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths for men are typically 25 to 30 percent longer for all types of cases.

  • SUMMARY CONCLUSIONS: Sentencing reform has had its greatest impact controlling disparity arising from the source at which the guidelines themselves were targeted — judicial discretion. Disparity arising from the decisions of other participants in the sentencing system, or from the process of sentencing policymaking itself, has been less successfully controlled. Statutory minimum penalties are invoked unevenly and introduce disproportionality and disparity when they prevent the guidelines from individualizing sentences. Presentencing stages, such as charging and plea negotiation, lack the transparency of the sentencing decision, making research more difficult. But significant evidence suggests that presentencing stages introduce disparity in sentencing. There is still work to be done to achieve the ambitious goals of sentencing reform in all respects.

November 23, 2004 at 02:35 PM | Permalink

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» 15-Year Sentencing Guidelines Report Released from ACSBlog: The Blog of the American Constitution Society
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