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September 7, 2010

Mining (and spinning?) the latest, greatest sentencing data from the US Sentencing Commission

The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Third Quarter FY10 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2010.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 3, 2010)

The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 60,000 federal cases sentencing in this period, just under 55% of all federal sentences fell within the calculated guidelines range.  Prosecutors, who requested departures or variances in nearly 26% of all cases, continue to be the primary driving force behind below-range sentences, but judges now go outside the guidelines on their own almost 20% of the time (with 2% of all cases having judges imposing above-range sentences and 17.6% of all cases prompting judges to impost below-range sentencing).

My simplistic take on the latest, greatest data is to note simply the remarkable stability in the operation and application of the advisory federal guideline sentencing system as we see this slow and steady, but still relatively slight, migration away from the guidelines.  Moreover, as the title of this post suggests, I think these data could be mined and spun in all sorts of ways. 

If I wanted to tell a story of the demise of the guidelines, I could focus on some outlier guidelines or some outlier districts.  It appears from this latest data run that significantly less that half of all child porn sentences and white-collar sentences for crimes like tax fraud and money laundering are imposed within the calculated guidelines range.  Similarly, in districts as varied as the Eastern and Southern Districts of New York to the Districts of Delaware and Minnesota and Utah to the Middle District of Tennessee to the Western District of Virginia, significantly less than half of all sentences are imposed within the guideline ranges.

But if I wanted to tell a story of the persistence and enduring importance of the guidelines, I could focus on other guidelines and other districts.  It appears that in more than four out of every five drug and immigration sentences are sentenced within the guidelines or below the guidelines based on prosecutors' substantial assistance or fast-track departure recommendations.  Similarly, in districts as varied as the Eastern and District of Virginia and Texas to the Districts of South Dakota and New Mexico to the Middle District Georgia, nearly three-quarters of all sentences are imposed within the guideline ranges.

In sum: "The federal sentencing guidelines are dead!  Long live the federal sentencing guidelines!"

September 7, 2010 at 11:06 AM | Permalink

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Comments

If you were sentenced for drugs or immagration, the guidelines are nearly 100% live....Don't think any different cause they drive these cases...The guidelines are grotest, how we could ever elect such sloths to run the country...

Posted by: Abe | Sep 7, 2010 11:39:05 AM

Abe: After reviewing your post, the word sloth comes to mind to describe your thought-processs and your spelling.

Posted by: mjs | Sep 7, 2010 4:33:07 PM

When discussing the continuing longevity of the Guidelines (or claimed lack thereof) in a post-Booker world (which is really the only reason these stats are published), one must not equate a departure with a non-Guideline sentence. Treating departures as evidence of not following the advice of the Guidelines is like saying taking IRS-authorized income deductions is tax evasion. Such equating is a gross mistake.

In Table 1 the Commission says 54.8% are within GL sentences. But the Table also shows that in looking at the remaining 45.2%, 21.8% are government-sponsored DEPARTURES, 3.1% are downward DEPARTURES, and .7% are upward DEPARTURES.

That means that only 19.6% of sentences were true instances of not following the Guideline’s advice and sentencing outside the Guideline Manual. In all other cases, it was the Commission's Guideline Manual that determined the sentence. Further, the government sponsored a non-departure below-Guideline sentence in 4% of that 19.6% cases.

Therefore, what really should be taken from Table 1 is that the advice of the GL was rejected without the government’s sponsorship in ~15-16% of sentences. Table 1's 54.8% figure is significantly misleading.

For better or worse, long live the Guidelines.

Posted by: DEJ | Sep 7, 2010 4:46:08 PM

19.6 percent, huh? Even if a considerably smaller percentage of judges is responsible for that figure -- assuming those capable of operating beyond the constraints of the GL justice-dispenser contrivance do so somewhat routinely -- it speaks well of the judiciary's healthy corps of mavericks.

Were I to hazard a guess as to the capacity for independent thought and bold action in the general population, it would come closer to one in 100 than one in five.

Posted by: John K | Sep 8, 2010 11:09:47 AM

John K: One is hardly a "maverick" when even the government is sponsoring a variance in 4% of cases.

Posted by: DEJ | Sep 8, 2010 11:19:06 AM

John K --

"Were I to hazard a guess as to the capacity for independent thought and bold action in the general population, it would come closer to one in 100 than one in five."

Since the "general population" -- i.e., democracy -- is not to be trusted, what alternative do you recommend?

Posted by: Bill Otis | Sep 8, 2010 1:52:01 PM

Democracy? I hope you're kidding, Bill.

If the legislative branch wanted to further marginalize the judiciary and make the justice system even harsher, it should have enacted sentencing laws itself...not appointed a commission of right-wing Republican operatives to do it for them...a commission, BTW, that's a full step removed from normal channels of political accountability.

And please, Bill, don't give me that nonsense about Ted Kennedy having been on board with what this Republican power grab turned out to be.

Posted by: John K | Sep 8, 2010 8:42:48 PM

John K --

"...not appointed a commission of right-wing Republican operatives to do it for them."

The Commission has a majority of Democratic appointees (Sessions, Castillo, Jackson and Howell), all of whom are liberal. Carr was appointed courtesy of Arlen Specter, so you can guess for yourself what his political affiliation is.

While we're at it, the Senate has 59 Democrats and 41 Republicans, but "appointed a commission of right-wing Republican operatives"??? What have you been smoking?

"And please, Bill, don't give me that nonsense about Ted Kennedy having been on board with what this Republican power grab turned out to be."

I'll give you the truth when needed, which unfortunately turns out to be often. That Kennedy was a co-sponsor of the SRA is not merely the truth but indisputable.

I asked you what your alternative is to democratic rule, in view of your statement that 99 out of 100 in the population are dolts incapable of independent thought.

What is your alternative?

Posted by: Bill Otis | Sep 8, 2010 10:09:16 PM

If you can see past Ted Kennedy's wimpy Democratic compulsion to play nice with Republican throat-slitters like Orin Hatch and Strom Thurmond...and overlook the concomitant terror Republican crime demagogues strike in the hearts of Democratic pols...it is then possible to recognize Kennedy's unease with what his Republican pals and their fire-breathing kin in Congress and on the Commission did with the SRA after Kennedy signed on with it.

What Breyer's problem was is anybody's guess...ambition? technocratic inclinations? a hole in his soul? I don't know.

Posted by: John K | Sep 9, 2010 8:45:07 AM

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