Sentencing Law and Policy

Notable buzz about proportionality review in capital cases

A helpful reader passed along some helpful information about recent developments concerning proportionality review in capital cases.  Here are the basics:

A cert petition in Holmes v. Louisiana, which questions whether the operation of Louisiana’s capital punishment scheme and the State Supreme Court’s proportionality review violate the Eighth Amendment’s guarantee against arbitrariness in capital sentencing, was recently spotlighted on SCOTUSblog's Petitions to Watch List here.  Notably, Charles Ogletree & the Houston Institute for Racial Justice at Harvard Law School are counsel of record.  And they have posted this press release on the case.

Relatedly, Bidish Sarma has an interesting little piece on proportionality review that was just posted on the Cardozo Law Review's online site, which can be accessed via this blog post.

"Immigration Prosecutions at Record Levels in FY 2009"

The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year.  According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.

These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws.  Whether it amounts to change we can believe in is, of course, a distinct question.   

A timely examination of data and integration amidst California's corrections craziness

Professor W. David Ball has recently put up on SSRN on this timely analysisof California's sentencing and corrections challenges, which is titled "E Pluribus Unum: Data and Operations Integration in the California Criminal Justice System."  Here is the abstract:

The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals.  An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.

While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution).  As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination.  Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.

Some recent posts on related issues in California and elsewhere:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• Economic necessity finally forcing long-needed reform in California
• "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
• Reviewing how tough times are resulting in prison releases
• "Prison spending still shackles state budget"
• Dueling persectives on proposed California prison reforms and a new challenge
• Trickle-down realities of the prison economy in California
• Latest news on sentencing and prison reform in California

Another notable uptick in below-guideline sentences in latest data run from USSC

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

Third Quarter FY09 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 2009.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 8, 2009)

The new data shows the continuation of a trend of an increase in below-guideline sentence (which I first noted in this post and which I tentatively predicted in this post right after President Obama's election).  This data run shows another (still small but seemingly significant) uptick in below-guideline sentences imposed by judges.  Specifically, in the three quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases.  In the three quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.8% of all cases. 

Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in more than 25% of all cases).  And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.

The latest data might be spun in lots of different ways, and it will be especially interesting to see how the on-going internal study group inside the Justice Department characterizes and responds to these trends.

Good (and surprising) news about crime rates

This new piece from the Washington Post, which is headlined "Major Cities' Plummeting Crime Rates Mystifying," provides both good news on crime rates and a new reason to wonder if anyone can assess with any confidence what makes crime rates rise and fall.  Here are excerpts:

Violent crime has plummeted in the Washington area and in major cities across the country, a trend criminologists describe as baffling and unexpected.  The District, New York and Los Angeles are on track for fewer killings this year than in any other year in at least four decades.  Boston, San Francisco, Minneapolis and other cities are also seeing notable reductions in homicides.

"Experts did not see this coming at all," said Andrew Karmen, a criminologist and professor of sociology at the John Jay College of Criminal Justice in New York.... Criminologists have different theories about why crime is down so much, although many agree that the common belief that crime is connected to the economy is false....

The District is on track to have fewer killings than in any year since 1964, when the population was about 760,000 and Vietnam War protests were just beginning.  In the years since, the city has struggled at times with civil unrest, the arrival of crack cocaine and the rise of street gangs. In 1991, the District was known as the murder capital of the United States, recording 479 that year.  This year, there have been 79....

Chuck Wexler, executive director of the Washington-based Police Executive Research Forum, said the drop in homicides this year is notable, especially considering the weather.  "This does come at an important time," he said.  "We're midway through summer, and summer is when you see the most significant increase in street violence. Departments have had to be more strategic in terms of gangs and hot spots."  Wexler said that crime isn't down everywhere.  Baltimore and Dallas are among some cities experiencing a higher number of killings compared with last year.

Gary LaFree, a criminology professor at the University of Maryland, said it has taken police decades to figure out how to effectively target crime.  "In the '60s, crime was like an act of God, like a tornado or earthquake," LaFree said.  "Where policing has changed is that we've gotten the idea this is a problem we created and there are human solutions to it.  Obviously, crime is not randomly distributed.  It is connected to hot spots in cities and other areas."

LaFree and others agree that crime doesn't automatically go up when the economy is poor. Property crime is also trending down in many jurisdictions, including the District, Prince George's and Montgomery.  The FBI reported last week that bank robberies across the country fell in the first quarter of the year, with 1,498 reported, compared with 1,604 in the first quarter of 2008.  Criminologists point to the Great Depression in the 1930s as a time of relatively low crime compared with the Roaring Twenties, when the country experienced more violence.

Okay team, in an effort to generate some debate, I will throw out two not-quite-absurd hypothesis for the unexpected drop in crime being reported here:

Hypothesis #1 — More guns, less crime:  In the wake of the Supreme Court's ruling in Heller and (silly?) concerns about possible new gun control efforts under and Obama Administration, gun sales have been up a lot over the last year.  Perhaps this new encouraging crime data reveals that more people packing heat really can help reduce crime rates.

Hypothesis #2 — More hope, less crime:  The election of Barack Obama, who ran on a campaign of hope, surely embodies the cliche that anyone can grow up in America and become President.  In addition to breaking barriers with historic appointments to the positions of Supreme Court Justice, Attorney General and Solicitor General, President Obama has often preached messages of personally responsibility as well as hope.  Perhaps giving more folks good reasons to hope leads to fewer folks having bad reasons to commit crimes.

A (significant?) uptick in below-guideline sentences in latest data run from USSC

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

Second Quarter FY09 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 second quarter of fiscal year 2009 [which runs through March 31, 2009].  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2009)

The new data perhaps suggest a trend that I tentatively predicted in this post right after President Obama's election in which I suggested that the incoming administration might impact federal sentencing practice before we see any formal changes in policy.  Notably, though the new data run pre-dates the Obama Administration's announcement of a new attitude about crack sentencing policy and any other formal discussion of policy changes, this data run shows a (small but seemingly significant) uptick in below-guideline sentences imposed by judges.  Specifically, in the two quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases.  In the two quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.3% of all cases. 

Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in roughly 25% of all cases). And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.

The latest, greatest federal sentencing data from the USSC

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

First Quarter FY09 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2009.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published April 15, 2009)

The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 60% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in nearly 25% of all cases.  

Not long after the election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments.  Interestingly, these latest numbers reveal a slight uptick in the number of judge-initiated departures and a slight down-tick in the number of prosecutor-initiated departures.  But these changes seem to be too slight at this early stage to assert that the federal sentencing times are a-changing.

Final FY2008 quarterly sentencing data from US Sentencing Commission

Just posted on the US Sentencing Commission's website is a finalized set of federal sentencing data for fiscal year 2008.  Here is how the USSC describes this latest data doc:

Final FY08 Quarterly Sentencing Update (Published March 24, 2009): An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2008. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Early federal sentencing data presents from the US Sentencing Commission

Data junkies, rejoice!  The number-crunching elves working inside the US Sentencing Commission (which is inside the Beltway just south of the North Pole) have finished making the present that every federal sentencing nerd like me wants for the holidays: new batches of federal sentencing data.  Specifically, now to be found on the USSC's main webpage are these data-licious announcements:

December 2008 Preliminary Post-Kimbrough/Gall Data Report:  An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through September 30, 2008. This report was prepared using data received, coded, and edited by the Commission by November 3, 2008.

FY2008 4th Quarterly Sentencing Update:  An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on September 30, 2008 and which were received, coded, and edited by the Commission by November 3, 2008.

Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of December 8, 2008.

I hope to get a chance to consume and crunch all this new data soon, but in the meantime perhaps readers can identify any particular sentencing statistics that jump out from all this new federal data.

Federal sentencing through history: "Theives Treated Tenderly."

An insightful reader sent me this link to a fascinating little New York Times story published in December 1886.  The quote above is the headline from this story published 122 years ago; here is the first sentence and some later snippets from this reporting of 19th-century federal sentencing news that was fit to print:

The unusual leniency with which the case of H. Robertson Jr. was handled by Judge Benedlot in the United States Circuit Court a few days ago has brought to the attention of lawyers and others who have business with the Federal authorities the extremely light sentences imposed upon persons convicted of violating the postal laws....

It will be seen that in no case has the sentence been for a longer term than one year.  In speaking of the tenderness with which Post Office cases were handled, Gen. Foster, the Assistant United States DistrictAttorney, said that he could not consider himself to blame as he had in nearly all the cases secured convictions.  He could not regulate the sentences because that rested entirely with the Judges.

Lots of new federal sentencing data from the USSC

I am so very pleased to discover that the US Sentencing Commission has a lot of new data on its website this morning.  Here is what's there as described by the USSC (with links):

• September 2008 Preliminary Post-Kimbrough/Gall Data Report: An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through June 30, 2008.  This report was prepared using data received, coded, and edited by the Commission by September 8, 2008.

• FY2008 3rd Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on June 30, 2008 and which were received, coded, and edited by the Commission by September 8, 2008.

• Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The report represents those cases considered by the courts through August 26, 2008 and for which data was received, coded, and edited by the Commission as of August 29, 2008.

After I get a chance to chew on all these data, I will comment in a separate post concerning anything that seems especially notable in the numbers.