Wednesday, November 28, 2012
"The Micro and Macro Causes of Prison Growth"The title of this post is the title of this very interesting paper on prison growth now on SSRN and authored by the always astute John Pfaff. Here is the abstract:
This paper explores both "who" has driven up US prison populations in recent years and "why" this growth has occurred. At least since the early 1990s, the "who" appears to primarily be prosecutors. Crime and arrests have fallen, and the percent of felony cases resulting in admissions and time served once admitted have been flat. But the probability that an arrest results in a felony charge has gone up significantly. (Limitations in data prevent us from examining the role of filing decisions before 1994.)
As for the "why," this paper provides some evidence that, at least since the crime drop began, increases in prison spending appear to track increases in state budgets fairly closely, suggesting that increased fiscal capacity is an important causal factor. It also looks at the politics-of-crime theories and explains that all previous efforts are unsatisfactory because they have focused on state and federal actors. Prosecutors, who are driving prison growth, are county officials, and it is unclear that state- and national-level political theories explain more-local outcomes.
Sunday, November 04, 2012
"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:
Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws. The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates. The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.
This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature. We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages. We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges. We address the problem of disentangling trends using a rigorous method called regression discontinuity design. We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker. Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.
November 4, 2012 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, November 02, 2012
Record-high government-sponsored departure rate in latest quarter of post-Booker data
Late yesterday, I got this e-mail alert via the US Sentencing Commission:
The United States Sentencing Commission's Preliminary Quarterly Data Report for the third quarter of fiscal year 2012 is now available on the Commission's website [at this link]. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first three quarters of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Only late today did I finally get a chance to look through these new numbers and the only big story within is what I highlighted via the title of this post coming from Table 4 of this big quarterly data report: during the third quarter of FY 2012 (which runs from April 1 to June 30), the rate of government-sponsored departures hit a record high of 28.7%. For some statistical context, the average rate of government-sponsored departures post-Gall has generally been under 26% (although the last six quarters all show rates above that modern historical average).
Interestingly, though the rate of non-government-sponsored below-guideline sentences has actaully declined each of the last three quarter, the rate of within-guideline sentencing hit a modern record low of 53.1% in the third quarter of FY 2012 because of the record-high rate of government-sponsored departures during this period.
The first sensible explanation I can devise for this latest data is that they reflect the impact of the Justice Department's decision way back in January (reported here and here) to authorize so-called "fast-track" departures in all districts, not just in a select few pre-authorized fast-track districts. I suspect that this decision may have led not only to an uptick in government-sponsored fast-track departures, but perhaps also some other types of "government-sponsored" departures in plea agreements for those who might not quite fit the standard fast-track criteria.
Wednesday, September 26, 2012
A review of the year that was 2011 in federal sentencingThe US Sentencing Commission has this week released this basic report "Overview of Federal Criminal Cases, Fiscal Year 2011." Though there is no new remarkable data in this report, this overview provides an effective reminder of what the (still growing) massive federal sentencing system is all about. Here is part of the start of the report:
The United States Sentencing Commission received information on 86,361 federal criminal cases in which the offender was sentenced in fiscal year 2011. Among these cases, 86,201 involved an individual offender and 160 involved a corporation or “organizational” offender....
The vast majority of the cases reported to the Commission involve an individual defendant. Over the last decade, the number of these cases has increased every year except one. In fiscal year 2011, the increase was 2.7 percent over the number of such cases in fiscal year 2010. Cases involving immigration, drugs, fraud, or firearms continue to be the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors. These four crime types have been the most common for the last decade. In fiscal year 2011, these crimes accounted for 83.0 percent of all cases reported to the Commission.
Immigration cases continued to be the fastest growing segment of cases in the federal system. In fiscal year 2011, there were 29,717 immigration cases reported to the Commission, an increase of 1,213 cases from the prior fiscal year. In the last ten fiscal years, the number of cases of this type has increased by 153.2 percent, while the total federal caseload has grown by 33.9 percent....
The number of drug cases has been relatively stable over the last five fiscal years, but because of the overall increase in federal cases, the portion of the criminal caseload attributable to those cases decreased to 29.1 percent in fiscal year 2011.... Firearms cases were 9.2 percent of the caseload in fiscal year 2011, a decrease of 2.4 percentage points from five years ago. The proportion of fraud cases over that period also was relatively stable at 9.8 percent in fiscal year 2011, but has declined slightly from 10.7 percent in fiscal year 2007....
The vast majority of convicted defendants plead guilty. In fiscal year 2011, more than 96 percent of all offenders did so, a rate that has been largely the same for ten years. When offenders pled guilty, 44.0 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 61 percent (61.5%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
A little simple division brings a little more perspective to these number: with more than 86,000 federal sentencings of individuals in FY2011, the system averaged over 1,650 sentencings per week and thus more than 330 federal sentencing per federal work-day. Put even more starkly, in the 15 minutes it took me to put together this post, on average 10 more persons were sentenced by the federal district judges.
Tuesday, September 11, 2012
"Estimating Gender Disparities in Federal Criminal Cases"The title of this post is the title of this great-looking new paper by Sonja Starr, which is now available via SSRN. Here is the abstract:
I have long found that, in both the classroom and in other settings, discussion of discretion and disparity in the criminal justice treatment of different genders can often foster more dynamic and less polarizing discusson than when the focus is on race. For this reason (and many others), I hope to soon find time to consume this important new article and may well comment on it further.
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.
Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.
Tuesday, August 14, 2012
New USSC report provides data on federal sentencing realities
The US Sentencing Commission recently published this interesting and effective little document titled simply "Overview of Federal Criminal Cases, Fiscal Year 2010." Here are one of many passages that should interest federal sentencing data junkies:
Until fiscal year 2009, drug offenses had been the most common federal crime during the 20 years for which the Commission has released sentencing data. In fiscal year 2010, 25,043 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug. Of these, 1,025 offenders were convicted of an offense involving simple possession of a drug.
Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 43.6 percent of the offenders sentenced under the Chapter Two drug guidelines. These cases were almost evenly split between offenses involving crack cocaine (20.1%) and offenses involving powder cocaine (23.5%).
Marijuana cases were the next most common, representing 26.0 percent of all drug crimes. In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases. Drug offenses involving methamphetamine represented 17.7 percent of all drug crimes. Heroin cases were the least common of the major drug offenses, accounting for 6.7 percent of all drug crimes.
Monday, July 16, 2012
Exciting new data and resources from US Sentencing Commission
Via e-mail, I have today received this exciting news concerning new materials and data available from the US Sentencing Commission via its website:
The United States Sentencing Commission today introduces its new Interactive Sourcebook. The Interactive Sourcebook allows users to re-create and customize the tables and figures presented in the Commission's printed Sourcebooks of Federal Sentencing Statistics, and contains additional viewing options and tables not published in the printed Sourcebooks. Please view the Interactive Sourcebook Features Guide to learn how to use the site. For more information, view the Frequently Asked Questions.
The United States Sentencing Commission's Preliminary Quarterly Data Report for the second quarter of fiscal year 2012 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Friday, July 06, 2012
Federal sentencing data junkies rejoice: USSC creates new "Research and Statistics Page"
A helpful reader reminded me that I had not yet spotlighted with the justified fanfare and blog firework that the US Sentencing Commission has just rolled out this awesome new page on its website, which is excitingly titled the "Research and Statistics Page." Here is how the USSC explains the new website offering: "This page contains content from the Commission's former Research and Data and Statistics pages. It also features new content, including the Commission's annual individual offender datafiles and prison and sentencing impact assessments."
Helpfully, the reader who made sure I posting these USSC developments, also sent me this terrific and insightful account of why the "prison and sentencing impact assessments" (which appear on this new special webpage) merit significant attention:
The Commission finally is publishing prison impact assessments. While it only has the assessments for this amendment cycle, hopefully it will publish retroactively (and should be encouraged to do so).
Such data are very useful, if for nothing else than to get some idea of the real-world effects amendments to the FSGs have. If data show very little impact, then not a lot of fuss should be given to them (and frankly, we should wonder why such amendments even would be necessary). In contrast, those amendments with a projected significant impact should be more thoroughly vetted/reviewed/criticized, and the actual prison effects should be followed (most especially where there is a net impact on prisons, i.e., more beds needed). And, of course, when a politically unpopular amendment is under consideration, if it also lowers the number of beds to be utilizied, then the cost-savings can make an otherwise bitter pill easier to swallow.
BTW, from what I understand, the model used to do these assessments goes all the way back to the late 80s and hasn’t been update since (nor an empirical assessment of how well the model predicts the impact). So, with such data available now, this additional area of study is available.
I agree completely with these sentiments, and I will add that another exciting aspect of the USSC's new data page is an icon which indicates that the Commission is developing an "Interactive Sourcebook." I am hopeful and cautiously optimistic that such a resource can and will make it much easier for both academics and practitioners to get quick and helpful federal sentencing data on an array of intricate subtopics.
Kudos to everyone at the USSC for getting this new data page up and running and also (in advance) to any and everyone else who helps me identify the latest and greatest data to mine from the page.
UPDATE: A different helpful reader has told me that the penultimate sentence in the quoted e-mail above contains misinformation and that the USSC's prison impact model is, in fact, regularly updated. Troublesomely, I cannot effectively assess who has the story right about this "insider" debate over the USSC data. But I can say that even questionable data is better than no data, so I just care that the USSC has made this data available no matter its precision.
Tuesday, June 19, 2012
Latest death row data on shows spike in percentage of condemned Latinos
Via this DPIC posting, I see that the NAACP Legal Defense Fund now has some notable updated data on condemned inmates via its Death Row USA publication available here. The DPIC posting summarizes highlights of this data in this way:
The latest edition of the NAACP Legal Defense Fund's Death Row USA shows a decrease of 19 inmates between January 1 and April 1, 2012. Over the last decade, the total population of state and federal death rows has decreased significantly, from 3,682 inmates in 2000 to 3,170 inmates as of April 2012. California continues to have the largest death row population (724), followed by Florida (407), Texas (308), Pennsylvania (204), and Alabama (200). Neither California nor Pennsylvania have carried out an execution in the past six years.
The report includes information on the race of death row inmates. Although the overall population of death row has decreased since 2000, the percentage of Latino inmates facing execution has been steadily increasing. In 1991, Latinos made up 6% of the nation's death row. In 2012, Latinos or Latinas comprised 12.4% of death row inmates. In jurisdictions having 10 or more inmates on death row, the states with the highest percent of Latino/Latina death row inmates are Nebraska (45%), Texas (29%) and California (23%). The report also contains statistics on executions and an overview of recent legal developments related to capital punishment.
Wednesday, June 06, 2012
"Time Served: The High Cost, Low Return of Longer Prison Terms"
The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.
Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.
Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.
Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender -- or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.
The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.
Almost all states increased length of stay over the last two decades, though that varied widely from state to state. In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.
A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences.
The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.
This press release from the Pew folks includes these additional details from the report:
Though almost all states increased length of stay over the last two decades, the overall change varied widely between states. Among 35 reporting states representing nearly 90 percent of 2009 prison releases, time served rose most rapidly in Florida, where terms grew by 166 percent and cost an extra $1.4 billion in 2009. Prison terms increased in Virginia by 91 percent, North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced their overall time served, including Illinois (25 percent) and South Dakota (24 percent).
Among prisoners released in 2009 from the reporting states, Michigan had the longest overall average time served, at 4.3 years, followed by Pennsylvania (3.8 years). South Dakota had the shortest average time served at 1.3 years, followed by Tennessee (1.9 years). The national average time served was 2.9 years.
Tuesday, April 03, 2012
"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers. Here is the abstract:
The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.
April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Wednesday, March 28, 2012
Latest USSC quarterly data show slight downtick in within-guideline sentences
I am pleased to report that the US Sentencing Commission, fresh on the heels of releasing lots of complete Fiscal Year 2011 federal sentencing data (as reported here), today has released on its website the latest, greatest, freshest new quarterly sentencing data. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY12 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 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 28, 2012)
The new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Most notably, after the last two quarters revealed a slight uptick in the total number of within-guideline sentences (mostly as a result of a slight decrease in the number of judge-initiated below-guideline sentences), these 1st Quarter FY12 data shows a new downtick in within-guideline sentences, though mostly as a result of an increase in the number of prosecutor-initiated below-guideline sentences.
Monday, March 26, 2012
US Sentencing Commission releases new annual report and sourcebook of federal sentencing stats
Though I continue to have a severe case of March Madness thanks to my Buckeyes making it to the Final Four, the US Sentencing Commission has just posted some new goodies on its website that would also enable me to have a severe case of federal sentencing data madness. Specifically, here's what now available for download via the USSC's website:
The 2011 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2011. See the Commission's 2011 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
I hope to see if there are any interesting stories to mine from these new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is more of note in these new USSC documents.
UPDATE on 3/27: I just received this email notice of an additional release from the USSC concerning its most up-to-date full-year data runs:
The United States Sentencing Commission's Final Quarterly Data Report for fiscal year 2011 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Wednesday, March 07, 2012
Notable FPD fact sheet says "TRAC Analysis of Variations in Sentencing Misses the Mark"
The afternoon I received an effective brief "Fact Sheet" produced by some federal public defenders which discusses limits on the federal sentencing data released by TRAC earlier this week. The full two-page fact sheet, which is titled "TRAC Analysis of Variations in Sentencing Misses the Mark" and can be downloaded below, gets started this way:
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing.” The press release accompanying TRAC’s report stated it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Media reports claimed “widely disparate sentences for similar crimes.” (AP)
The data released by TRAC might in the future shed light on federal sentencing, but its initial analyses, and media coverage, demonstrate the danger of a little knowledge about a complex subject. TRAC’s analysis fails to meet minimal academic standards and should not be a basis for policy making.
The cases sentenced by the judges in the study are not similar.
- The only similarity among the cases sentenced in each district is that prosecutors categorized them as “drug,” “white collar,” etc. All other case differences are ignored. Heroin or marijuana cases, involving 1 gram or 1 ton, are all called “similar” drug cases. First-time offenders are lumped with lifetime criminals.
- Academic researchers studying disparity use data from the U. S. Sentencing Commission to categorize cases along dozens of different variables, but this data was not used in TRAC’s analysis.
The intra-district comparisons intended to control for differences among cases are flawed.
- The study compared median (half below, half above) sentences among judges in a particular district, on the assumption that these judges sentenced similar types of cases. But this is often untrue.
- Many districts have several courthouses in different cities, which sentence very different types of crimes. Average sentences should be different among judges who sentence different types of offenses and offenders.
- Academic researchers faced with this problem are careful to compare only judges in the same courthouse who are part of the same random case assignment pool. This helps compensate for individual case differences in the long run.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
- Trying to unpack the new federal sentencing data from TRAC
Monday, March 05, 2012
Trying to unpack the new federal sentencing data from TRAC
As reported in prior posts here and here, the folks at the Transactional Records Access Clearinghouse (aka TRAC) have assembled important new data on federal sentencing outcomes which includes information (linked here, but requiring a subscription) on sentencing outcomes for nearly every federal judge over the last five years. The New York Times has this new article about the TRAC data, which is headlined "Wide Sentencing Disparity Found Among US Judges," and highlights some more of the backstory concerning why the new TRAC data is so notable:
The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary....
Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers.
In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005.
The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government.
The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.
Unfortunately, based only on the publicly available materials set out by TRAC here in this simple report, I find it extremely hard to reach any new or refined views or conclusions about post-Booker sentencing practices. It seems that one must purchase a TRAC subscription to be only able even to understand the nature and potential limits of the data that TRAC has assembled concerning the sentencings of individual judges. Moreover, based on the TRAC reporting, I fear that the TRAC data only includes final sentencing outcomes and lacks any refined information about applicable mandatory minimums, calculated guideline ranges, offender criminal histories and other obviously relevant considerations that may be driving different sentencing patterns in different sets of cases.
Notably, at the end of the TRAC report, the folks at TRAC praise their justifiably praise their data compilation efforts with this comment: "TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts." I very much like this sentiment, and hope in the days and weeks ahead to see judges, law schools, scholars, public interest groups, Congress and others trying to unpack the TRAC data so we can all better understand and assess what it may be telling us.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
"Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
As previously "previewed" in this post, today the Transactional Records Access Clearinghouse (aka TRAC) has released important new data and a report concerning federal sentencing practices in recent years. This TRAC report, which carries the same title as this post, is now available at this link, and it gets started this way:
An analysis of more than 370,000 cases completed in the nation's federal courts during the last five years has documented extensive and hard-to-explain differences in the sentencing practices by the judges working in many federal districts.
This first-of-its-kind, judge-by-judge review by the Transactional Records Access Clearinghouse (TRAC) of federal sentences imposed for drugs, white collar and other kinds of crimes from FY 2007 to FY 2011 indicates that the typical sentence handed down by a federal district court judge can be very different than the typical sentences handed down for similar cases by other judges in that same district. This finding raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.
Caution. A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is "just." No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.
But a fair court system also requires "equal justice" under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.
There is a whole lot here to consume and discuss in this TRAC report, and I hope to discuss what I see as soon as I get back from my afternoon class and have time to consume it.
Recent related post:
Sunday, March 04, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...
Thursday, January 26, 2012
"The Price of Prisons: What Incarceration Costs Taxpayers"
The title of this post is the title of this important new (and relatively brief) report from the Vera Institute of Justice, which aspires to provide a complete picture of state prison costs to taxpayers. Here is the text of the e-mail blast I received about the report:
A newly released study by a team of Vera researchers calculates—for the first time—the full cost of prisons to taxpayers, including costs outside states’ corrections budgets. The Price of Prisons: What Incarceration Costs Taxpayers—published today—shows that in 40 participating states the aggregate cost of prisons in FY2010 was $38.8 billion, $5.4 billion more than their corrections budgets reflected.
Individually, states’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut. Detailed fact sheets for each of the 40 participating states are available [at this link].
The Price of Prisons is a joint product of Vera’s Center on Sentencing and Corrections and its Cost-Benefit Analysis Unit, and was conducted in partnership with the Public Safety Performance Project of the Pew Center on the States.
Sunday, January 08, 2012
Interesting new data on operation of death penalty in Connecticut
Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State. First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:
This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination. My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut. The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.
Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony. Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.
Second, from the start and end of the NYT editorial:
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....
Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study. But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional. A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.
Thursday, December 15, 2011
Latest official BJS numbers show historic modern decrease in prison population
Proving once again the aphorism that what goes up (and up and up and up) must eventually come down, this new press release reports on a notable new development concerning modern prison populations:
The Bureau of Justice Statistics (BJS) reported today that the number of offenders under adult correctional supervision in the U.S. declined 1.3 percent in 2010, the second consecutive year of decline since BJS began reporting on this population in 1980. At yearend 2010, about 7.1 million people, or 1 in 33 adults, were under the supervision of adult correctional authorities in the U.S.
In addition, the total U.S. prison population fell to 1.6 million at yearend 2010, a decline of 0.6 percent during the year, the first decline in the total prison population in nearly four decades. This decline was due to a decrease of 10,881 in the number of state prisoners, which fell to just under 1.4 million persons and was the largest yearly decrease since 1977. The federal prison population grew by 0.8 percent (1,653 prisoners) to reach 209,771, the smallest percentage increase since 1980....
During 2010, prison releases (708,677) exceeded prison admissions (703,798). The decrease in commitments into state prison, especially the 3.3 percent decrease in the number committed from the courts on a new sentence, was responsible for the decline in the state prison population. The time that offenders entering state prison could expect to serve on a commitment, about 2 years, remained relatively stable between 2009 and 2010, which indicates that the decline in the state prison population during the year was the result of a decrease in admissions.
Half of state departments of corrections reported decreases in their prison population during 2010. California (down 6,213) and Georgia (down 4,207) reported the largest decreases, followed by New York (down 2,031) and Michigan (down 1,365). Illinois (up 3,257) reported the largest increase, followed by Texas (up 2,400) and Arkansas (up 996).
In 2010, the U.S. imprisonment rate dropped to 497 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents. The national imprisonment rate for males (938 per 100,000 male U.S. residents) was about 14 times the imprisonment rate for females (67 per 100,000 female U.S. residents).
Among offender age groups, about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.
All of these interesting data and lots and lots more appear this pair of new documents:
I cannot overstate how excited I am to learn that, at the same time that US crime rates continue to hit record modern lows, we are also seeing a decrease in the number of persons incarcerated throughout the country. And I hope and trust that all readers, no matter what their perspective on sentencing law and policy, will also see this news as cause for celebration.