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May 1, 2017

"Unwarranted Disparity: Effectively Using Statistics in Federal Sentencing"

The title of this post is the title of this recent practitioner-oriented piece authored by Alan Ellis and Mark Allenbaugh. Here is its introduction:

Now in their 30th year, the U.S. Sentencing Guidelines (Guidelines) have been used to sentence well over 1.5 million defendants nationwide since Nov. 1, 1987, when they first went into effect. (See U.S. Sentencing Comm’n, 1996-2015 Sourcebooks on Federal Sentencing Statistics, Tbl. 10; U.S. Sentencing Comm’n, Quarterly Data Report (4th Quarter Release), Tbl. 1 (Sept. 30, 2016).  From these sources, there were approximately 1.4 million individuals sentenced under the Guidelines.)

Eliminating unwarranted sentencing disparity was the primary goal of the Sentencing Reform Act. (See U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing, 79 (2004)). The act created the U.S. Sentencing Commission (Commission), tasking it with the creation of the Guidelines, and the authority to amend and promulgate new Guidelines from time to time. (See 28 U.S.C. § 994).

Since their inception, the Guidelines have been amended hundreds of times.  This process largely has been informed by the data the Commission collects, publishes and analyzes regarding the application of the Guidelines, including sentences imposed, and departures or variances.  Although in many instances the Commission has been directed by Congress to make certain changes.  In short, the Guidelines have evolved primarily, although not exclusively, as a result of the Commission’s ‘‘empirical approach’’ to sentencing. (See USSG, Ch. 1, Pt. A.)

The purpose of this article is to provide the reader with an overview of what data are available, and to provide suggestions as to how the data may most effectively be used by practitioners in mitigation of punishment.

May 1, 2017 at 12:18 PM | Permalink


Well, I wish I were still one of the faithful believers. This is difficult data to extract from all the reports. What does it tell us? It tells us that going to trial will give you a disparate sentence if you are charged with conspiracy, and it tells us what the average disparity is. It cannot factor in the character of the individual prosecutor, the skill of the cooperating witness, the attentiveness of the presiding judge etc.

I was just reading an FBI handbook published in the nineties. There is a little chapter stating in detail all the advantages of a conspiracy charge and why it should be used whenever possible. It tells us everything we need to know about the perils of the conspiracy charge and the horrors that will be faced if the defendant wishes to exercise their 6th amendment right to trial. It makes me wonder about the judgement of the FBI continuing education agents that put the instructions in writing. In a normal world - just reading them would be a defense.

The most remarkable thing is that the public is unaware of this distinctive characteristic of our criminal justice system. This method of prosecution is also frowned on by all other western democracies. I'm kind of gratified that the current administration seems disinclined to consult career policy advisors. How in the heck did we get here anyway.

Posted by: beth | May 1, 2017 5:31:02 PM

The FBI is a stunningly, startlingly retrograde organization. Hardly anything surprises me about the FBI anymore. I guess this should be no surprise given the influence of paranoid, mentally unstable JEH over the entity for 50 years.

Posted by: Fat Bastard | May 2, 2017 10:43:12 AM

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