Tuesday, December 18, 2012
DPIC reports slight uptick in number of death sentences imposed in 2012The Death Penalty Information Center released its year-end report on death penalty developments today, and the full eight-page report is available at this link. This press release from DPIC about the report echoes its theme of the death penalty in decline by making these points at the outset:
Only nine states carried out executions this year, equaling the fewest number of states to do so in 20 years, according to a new report released today by the Death Penalty Information Center (DPIC). More than half of the states (29) either have no death penalty or have not carried out an execution in five years. The number of executions in 2012 (43) was 56 percent less than the peak in 1999 and equal to last year’s total.
The number of new death sentences in 2012 was the second lowest since the death penalty was reinstated in 1976. Seventy-eight people were sentenced to death in 2012, representing a 75 percent decline since 1996 when there were 315 sentences.
Many death penalty states with histories of high use had no new death sentences or no executions in 2012. North Carolina, South Carolina, and Virginia (which is second to Texas in total executions since 1976) had no death sentences and no executions. No executions were carried out in Alabama, Georgia, Louisiana, or Missouri.
“Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states. It is very likely that more states will take up the question of death penalty repeal in the years ahead.”
Especially as compared to death penalty's modern heyday in the United States (which roughly corresponds to the half-decade following the oklahoma City bombing and President Bill Clinton's second term in office), this basic narrative of the capital punishment in decline is accurate. But as my post headline and the graphic above notes, the very latest developments suggest a flattening out of the declining trend.
Despite the controversy over the Troy Davis execution and the initiative repeal effort in California this year, there was still apparently a slight uptick in the total number of death sentences imposed throughout the United States. And, as the data from DPIC here reveal, the 43 executions in 2012 is right around the average number of yearly executions throughout the United States over the past half-decade. Thus, assuming recent capital past is prologue, we can and should reasonably predict on average six or seven death sentences and three or four executions every month in the United States for the foreseeable future.
On a related front, I wonder if anyone has any good data on the number of LWOP sentences imposed in 2012 or before. I have long worried that a small reduction in death sentences imposed within a jurisdiction might sometimes result in disproportionately large increase in the number of LWOP sentences in that jurisdiction. I do not have rigorous data to back up my concerns here, and I would be grateful for any information anyone may have about relationships between death sentencing trends and imprisonment trends in 2012 or before.
Monday, December 17, 2012
BJS releases official accounting of "Prisoners in 2011" in the United StatesAs reported in this official press release, the US Justice Department’s Bureau of Justice Statistics this morning released its official accounting of the total population of prisons as of the end of 2011. Here are a few data highlights via the press release:
Twenty-six state departments of corrections reported decreases in their prison population during 2011, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. California reported the largest decline (down 15,493), while New Jersey, New York, Michigan, Florida, and Texas each had population decreases of more than 1,000 prisoners in 2011.
Among states that had increases in their prison populations, Tennessee and Kentucky both added more than 1,000 inmates in 2011. During 2011, the total U.S. prison population declined for the second consecutive year, to under 1.6 million inmates or 15,023 fewer inmates than in 2010. This represents a 0.9 percent decrease in the total prison population.
The overall decline in 2011 was due to the decrease in state prisoners, down 21,614 prisoners or 1.5 percent from 2010. The reduction in California’s prison population under the Public Safety Realignment policy accounted for 72 percent of the total decrease in state prisoners. The federal prison population offset the decline in the states with an increase of 6,591 prisoners (up 3.1 percent) from 2010 to 2011.
As in 2010, prison releases in 2011 (688,384) exceeded prison admissions (668,800). Admissions to federal prisons increased 12 percent (up 6,513 inmates) in 2011 while state prison admissions decreased 6.4 percent (down 41,511 inmates) from 2010. The number of admissions to state prisons (608,166) fell to its lowest level since 2001. Sixty-three percent (26,340 admissions) of the decrease in state prison admissions between 2010 and 2011 was due to fewer parole violators being reincarcerated.
In 2011 the U.S. imprisonment rate dropped to 492 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 (932 per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (65 per 100,000 female U.S. residents)....
In 2010 (the most recent data available) 53 percent of sentenced state prisoners were serving time for a violent offense, 18 percent for property offenses, 17 percent for drug crimes and 10 percent for public order offenses, such as weapons, drunk driving, commercialized vice and court offenses.
An estimated 188,200 sentenced state prisoners (14 percent) were serving time for murder or manslaughter in 2010, while 160,800 offenders were incarcerated for rape and other sexual assaults. Between 2000 and 2010, the estimated number of state prisoners sentenced for any violent offense increased by 99,400 inmates, or 16 percent (from 625,600 prisoners in 2000 to 725,000 in 2010).
Inmates sentenced for drug offenses comprised 48 percent (94,600 inmates) of the sentenced federal prison population in 2011, while 7.6 percent of federal prisoners were held for violent offenses. An estimated 11 percent (22,100 inmates) were serving time in federal prison for immigration offenses.
Because imprisonment, especially at the margins, always seems to me to be a very expensive way to try to reduce crime, I am pleased to see that the prison population in the US went down a bit in 2011. But, significantly, it seems most of the national prison population decrease can be attributed to the Plata litigation and subsequent realignment in California. Absent significant prison population reductions in other states in 2012, it is possible that the national prison population in the land of the free could tick back up soon (thanks, in large part, to the seemingly ever-growing federal prison population).
The full 34-page BJS report "Prisoners in 2011," which has lots and lots of interesting data, is available at this link. Among other interesting information, this new report reveals that, as of the end of 2011, the five largest prison systems in population terms are, in order, the feds, Texas, California, Florida and Georgia.
Thursday, November 29, 2012
Latest BJS data report 2011 decline in US prison and overall correction populationsAccording the latest, greatest official numbers from the Bureau of Justice Statistics, the total population subject to criminal justice control in the US declined (again) in 2011. This press release from BJS sets out the basics:
About 6.98 million people were under some form of adult correctional supervision in the U.S. at yearend 2011, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. This was the equivalent of about one in 34 U.S. adults (or about 2.9 percent of the adult population) in prison or jail or on probation or parole, the lowest rate of adults under correctional supervision observed since 2000.
The adult correctional population declined by 1.4 percent or 98,900 offenders during 2011. This was the third consecutive year of decline in the number of offenders under the supervision of adult correctional authorities....
At yearend 2011, about 4,814,200 offenders were supervised in the community on probation or parole, and 2,239,800 were incarcerated in state or federal prisons or local jails. About one in 50 adults was under community supervision while about one in 107 adults was in prison or jail.
While both the community supervision population (down 1.5 percent) and the incarcerated population (down 1.3 percent) decreased during 2011, the majority of the decline (83 percent) in the total number of adults under correctional supervision during the year was due to a drop in the probation population. The probation population declined two percent or by 81,800 offenders during 2011, falling below four million for the first time since 2002.
For the third consecutive year, the number of offenders discharged from probation supervision (about 2.2 million offenders) exceeded the number who entered probation (about 2.1 million) during 2011, contributing to the decrease in the probation population....
An increase in the parole population partially offset declines in all other components of the adult correctional population. The parole population increased 1.6 percent or by 13,300 offenders during 2011. The state parole population increased 1.1 percent and the federal parole population grew 5.1 percent during the year....
The failure rate of parolees (defined as the percentage of parolees who were returned to jail or prison out of all parolees who could have been incarcerated at any point during the year) decreased for the fifth consecutive year. During 2011, about 12 percent of parolees at risk of reincarceration were incarcerated at some time during the year, down from about 15 percent during 2006.
All these data and so much more can be found in these two official new reports from BJS: Correctional Populations in the United States, 2011; and Probation and Parole in the United States, 2011
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.
DPIC year-end report indicates record-low number of US death sentences in 2011
The Death Penalty Information Center has just released its always notable year-end report for 2011, which can be accessed here. The report carries this lengthy sub-title: "Illinois Abolition, Oregon Moratorium, and Troy Davis Execution Highlight Growing Concerns About Death Penalty; Executions Decline, Death Sentences Fall Well Below 100." As the title to this post reveals, I think the most notable and important part of the 2011 story is the significant decline in death sentences as discussed in these passages from the report:
Death sentences continued their sharp decline since the 1990s. The number of new death sentences imposed in 2011 stands at 78, a decline of about 75% since 1996, when 315 inmates were sentenced to death. This is the lowest number of death sentences in any year since the death penalty was reinstated in 1976. Texas, which had 48 new death sentences in 1999, had only 8 this year.
California, the state with the largest death row, saw its death sentences drop by more than half this year -- 10 compared with 29 in 2010 (at least 2 other cases resulted in a jury verdict of death, but the judge has not imposed the sentence). Many death penalty states, such as Maryland, South Carolina, Missouri and Indiana had no new death sentences in 2011. The South and West combined for 87% of the death sentences, while the Midwest and Northeast had 12%.
The annual number of death sentences began declining after 1998. In the 1990s there were close to 300 death sentences annually. Since then, the number has dropped steadily, as the risks of executing the innocent grew more apparent and life without parole sentences became more common. In every region of the country, death sentences have declined, which eventually will affect the number of executions.
Couple points of follow-up to detail some of my thoughts about this part of the story:
1. Though innocence concerns and an LWOP alternative definitely help explain why the national death sentences have declined "about 75% since 1996," these factors do not alone strike me as a sufficient explanation for the big dip in death sentences from 2010 (with 112 death sentences nationwide) to 2011 (with only 78 death sentences). As reflected in this effective Wall Street Journal article about this DPIC report, I suspect the high costs of prosecuting capital cases is prompting fewer prosecutors to seek death sentences and/or more prosecutors being willing to accept plea deals that take death off the table after a capital indictment.
2. I seriously doubt that a decline of the national number of death sentences, unless and until the number gets into teens, "will affect the number of executions" anytime soon. There are still well over 3000 murderers on death row right now, which means the US could have more than five decades of executions at the now-common pace of around 50 executions (and 10 death sentence reversals) each year even if there were zero new death sentences over the next half-century. In addition, there are reasons to believe that many of the newer death sentences in recent years are "better" (i.e., less likely to be reversed) because prosecutors, jurors and judges are not seeking or imposing death sentences in more questionable cases.
3. Speaking of execution rates and death sentences, the latest DPIC data highlight that the yearly execution numbers lately are principally a function of how quickly and how often Texas, Ohio, Alabama, Georgia, Florida and a few other serious death penalty states get murderers from death row to the execution chamber. These five states alone already have nearly 1200 murderers condemned to die, which means these five states alone could sustain a pace of, say, thirty executions per year until the year 2050 without the imposition of any new executions over that time. And if California with its more than 700 condemned murderers were ever to get seriously back into the execution business (which I very much doubt)....
Monday, December 05, 2011
US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Fourth Quarter FY11 Quarterly Sentencing Update: 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. (Published December 5, 2011)
As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.
These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)
Monday, October 31, 2011
The US Sentencing Commission new mega-report on mandatory minimums now available
I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System." This official press release provides the basics on this important report:
Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.
Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.
Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):
- More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty.
- More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
- Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
- Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
- Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
- Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.
The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link. Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.
October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, October 07, 2011
Eighth Circuit panel unanimously affirms dismissal of challenges to Arkansas execution protocol
Earlier today, an Eighth Circuit panel handed down an opinion in Williams v. Hobbs, No. 10-1573 (8th Cir. Oct. 7, 2011) (available here), which rejects various claims by death row prisoners in Arkansas concerning the state's execution plans. Here is how the opinion starts:
Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.
Wednesday, September 07, 2011
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 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 third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Friday, August 05, 2011
"On the Chopping Block: State Prison Closings"
The title of this post is the title of this timely new little report from The Sentencing Project. The report spotlights that at least 13 states have closed or are considering closing correctional facilities this year, and includes a detailed chart on state prison closings. The report begins this way:
As a result of recent policy changes and pressures brought on by the fiscal crisis, state lawmakers are closing prisons after 40 years of record prison expansion. Declining prison populations in a number of states have resulted in excess prison capacity. During 2010, the Bureau of Justice Statistics reported the first decline in the overall state prison population since 1977 and found 24 states had reduced prison populations during 2009. In 2011 at least thirteen states have closed prison institutions or are contemplating doing so, potentially reducing prison capacity by over 13,900 beds. Since 2002, Michigan has led the nation in this regard. The state has closed 21 facilities, including prison camps, as a result of sentencing and parole reforms. Overall, the state has reduced capacity by over 12,000 beds for a total cost savings of $339 million.
Other states, including New Jersey and Kansas, have also closed prisons in recent years amid changes in sentencing policy and parole decision making that have resulted in a decline in state prison populations. Maryland also reduced prison capacity when it closed the Maryland House of Corrections in 2007 by transferring 850 prisoners to other prisons.
Wednesday, August 03, 2011
Split Sixth Circuit reverses federal death sentence on interesting grounds
A long and quite interesting Sixth Circuit opinion handed down today in US v. Gabrion, No. 02-1386 (6th Cir. Aug. 3, 2011) (available here), covers a lot of issues relating to the federal death penalty in the course of affirming a conviction and revering the death sentence. This start to the partial dissent by Chief Judge Batchelder provides an effective summary of the majority ruling and the enduring points of disagreement within the panel:
I would affirm the district court in its entirety — both conviction and sentence. Therefore, I concur generally in the portions of the majority’s decision that affirm the judgment of the district court without necessarily joining the majority’s reasoning or discussion. I agree that we need not reach the issue contained in Section XIV but I do not join in the associated dicta. I respectfully dissent from those portions of the majority’s decision that reverse the district court, specifically Sections II and III.
In Section II, the majority conducts a de novoreview of Gabrion’s claim that the district court misinterpreted or misapplied certain provisions of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591—3598. By reading the word “any” in § 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a mitigating factor”) as unqualified and unlimited, the majority holds that these provisions mandate that a capital defendant may offer to the jury any “mitigating” evidence or argument, i.e., any evidence or argument that could conceivably make a juror question the appropriateness of the death penalty. Reading “any” as unlimited necessarily requires the inclusion within these two provisions of Michigan’s policy against the death penalty. The majority therefore concludes that the district court erred by excluding reference to Michigan law.
In Section III, the majority considers Gabrion’s claim that the district court violated his constitutional right to due process by misinstructing the jury on the burden of proof in the weighing of aggravating and mitigating factors, and again conducts a de novo review. The district court instructed the jury that it need only find that the aggravating factors “sufficiently outweigh” the mitigating factors, which is language quoted directly from the statute. See § 3593(e). The majority finds the statutory language unacceptably vague, and therefore constitutionally infirm, and holds that a sentencing court must instruct the penalty-phase jury that it may impose the death penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
I must respectfully disagree with both of these holdings. I would hold that a reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case. Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury. I would affirm the district court.
Shouldn't we be surprised Baze settled so little about lethal injection protocols?
The question in the title of this post is prompted by some new headlines and stories out of Florida and Tennessee reports on-going lethal injection litigation: from Florida here we have "Judge hearing challenge to Fla. execution drug"; from Tennessee here we have "Tennessee Executions on Hold." Moreover, as regular readers know, both the federal government and Ohio are in the midst of a de facto execution moratoria as they seek to shore up their lethal injection protocol and practices (background here and here). And California, the state with the largest death row, seems no closer to resuming executions today than it did five years ago.
I am not at all surprised that attorneys for murderers on death row continue to press vigorously any and all plausible constitutional challenges to lethal injection protocols a full three years after the Supreme Court seemingly important Baze ruling which approved Kentucky's execution protocol. But I am quite surprised that these constitutional challenges continue to be having so much traction in lower courts and continue to hinder the ability of so many states to resume executions.
In short, though I knew the Baze ruling wouldn't resolve or shut down most lethal injection litigation, I expected that this litigation would be a much smaller part of the national death penalty story over time. And yet, the opposite almost seems to be the case (though this may be more a product of recent practical challenges in getting key lethal injection drugs rather than litigation realities).
Do readers share my surprise on this front? Was I just wrong to suspect the 2008 Supreme Court ruling in Baze could and would be a significant turning point in this uniquely modern death penalty story? Are there some important broader lessons — concerning the administration of the death penalty in the United States or concerning the limits of SCOTUS jurisprudence — to be drawn from these realities?
Thursday, July 21, 2011
"Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes"
The title of this post is the title of this notable empirical paper by Thomas Cohen from the U.S. Bureau of Justice Statistics, which is available now via SSRN. Here is the abstract:
The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients?
These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders. This article concludes by discussing the policy implications of these findings and possible avenues for future research.
Tuesday, July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, July 18, 2011
New research shows positive outcomes from drug court programs
Via an email from the folks at the Center for Court Innovation, I have learned of important new research finding that drug courts are often successful at reducing substance abuse and crime. Here is an excerpt from the email describing this new research:
Researchers at the Urban Institute, the Center for Court Innovation, and RTI International have recently completed perhaps the most ambitious study of drug courts to date. Funded by the National Institute of Justice, the five-year multi-site study compared participants in 23 drug courts in seven states to similar defendants who went through conventional case processing. The results offer vivid evidence that drug courts are effective at reducing both substance abuse and crime.
Among other findings, the study documented that drug court participants were one-third less likely to report using drugs 18 months after their enrollment in the program. And they were responsible for less than half as many criminal acts as the comparison group after 18 months. Largely because of these reductions in criminal behavior, drug courts ended up saving an estimated $5,680 per participant — cost savings that closely resemble those found in previous studies in California and Washington State.
In examining why drug courts have succeeded, the evaluation focused in particular on the role of the judge and the value of procedural fairness. The fact that drug court participants generally had more favorable perceptions of the judge than the comparison group was among the most important factors explaining why drug courts reduced drug use and crime.
Wednesday, June 22, 2011
Justice Department creates great new evidence-based criminal justice resource
I am extremely pleased to see (thanks to this item at The Crime Report) that The U.S. Justice Department has created an important new website, Crime Solutions.gov, to enable all of us to better assess the effectiveness of state and local criminal justice programming. Here is more background vie The Crime Report:
The site, unveiled yesterday at the National Institute of Justice’s annual crime research conference near Washington, D.C., was billed by federal officials as a “single, credible, online resource to inform practitioners and policymakers about what works in criminal justice, juvenile justice, and crime victim services.”
Laurie Robinson, Assistant Attorney General for Justice Programs, started the project when she returned to government service in 2009. A team of experts from her office and the Maryland-based private firm Development Services Group (DSG) assembled the database by reviewing academic studies that have reviewed hundreds of anticrime programs under accepted scientific standards.
Each program was classified in one of three categories: effective, promising, or no effects. Officials emphasized that the CrimeSolutions.gov site is a work in progress, with new evaluations added almost daily. In the last week before the NIJ conference, the number listed jumped from 125 to 145.
The programs are divided into eight categories. As of yesterday, crime and crime prevention had the most evaluations (24) while drugs and substance abuse had the fewest (8). Other categories are corrections and prisoner reentry, courts, forensics and technology, juvenile justice, law enforcement, and victims and victimization.
Many programs didn’t make the cut, either because they were judged ineffective or there wasn’t enough evidence to make a judgment. Phelan Wyrick, an assistant to Robinson, said good but unproved programs would not have to make the list to qualify for federal funding. “We must continue to support innovation,” he told the NIJ conference.
CrimeSolutions.gov is intended to be a central, reliable, and credible resource to help practitioners and policymakers understand what works in justice-related programs and practices. Its purpose is to assist in practical decision making and program implementation by gathering information on specific justice-related programs and reviewing the existing evaluation research against standard criteria.
It is important to note the CrimeSolutions.gov Web site does not constitute an endorsement of particular programs, nor does it conduct original research. The programs reported upon favorably are being recognized for their accomplishments in support of the mission of the Office of Justice Programs (OJP). Furthermore, it is not intended to replace or supersede informed judgment and/or innovation. CrimeSolutions.gov recognizes that rigorous evaluation evidence is one of several factors to consider in justice programming, policy, and funding decisions. OJP also recognizes the importance of encouraging and supporting innovative approaches that may not yet have extensive evidence of effectiveness.
Wednesday, June 01, 2011
Interesting new federal sentencing data to mine from USSC
I am pleased to see that the US Sentencing Commission has now already posted another round of fresh new sentencing data on its website. The USSC's latest data report, which can be accessed here, is described this way:
Second Quarter FY11 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 half of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
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 around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Interestingly, the latest quarter of data reveal an apparent nadir in the percent of within-guideline sentences (53.5%) driven by a record high percent of government-sponsored below-guideline sentences (27.2%). The latest data also show that in the first half of FY11, only just over one-third of all child porn sentences are within-guidelines (36.8%) while over 60% involve government-sponsored (18.6%) or judge-initiated (42.8%) below-guideline sentences. This further reinforces my view that, generally speaking, in a mine-run case a below-guideline sentence rather than a within-guideline sentence complies with the 3553(a)(6) statutory instruction to sentencing judges to avoid unwarranted disparities.
Thursday, May 26, 2011
Interesting Brookings report on US crime rates in various regions
As detailed in this press release, the Brookings Institution has released an interesting report about declining crime rates in the US. Here are the particulars:
The new report, City and Suburban Crime Trends in Metropolitan America, finds that factors like immigration, ethnicity, and poverty, when combined, do not play the roles in encouraging crime many might believe they do.
“Many people know the rates of violent and property crimes have declined significantly in recent years,” said Steven Raphael, Professor of Public Policy at the University of California, Berkeley and one of the report authors. “What may come as a surprise is that some of the social characteristics we have associated with crime in the past are not associated with criminal behavior as they were once upon a time. Crime rates have dropped everywhere, but they have declined the most in the nation’s inner cities that are often poorer, more urbanized, and more minority than their suburban counterparts.” ...
Among the report’s key findings:
- Rates of violent crime and property crime declined significantly between 1990 and 2008 in the country’s 100 largest metropolitan areas, with the largest decreases occurring in cities. Violent crime rates dropped by almost 30 percent in cities, while property crime fell by 46 percent. Though city crime rates remain considerably above those in suburbs, smaller decreases in suburban violent and property crime rates over this time period (7 percent and 37 percent, respectively) narrowed the gap.
- The gap between city and suburban violent crime rates declined in nearly two-thirds of metro areas. In 90 of the 100 largest metro areas, the gap between city and suburban property crime rates narrowed from 1990 to 2008. In most metro areas, city and suburban crime rates rose or fell together.
- Among suburban communities, older high-density suburbs registered the largest declines in crime rates. All types of suburban communities saw property crime rates fall over this time period. Cities and high-density suburbs also saw violent crime rates decline, but low-density exurban communities experienced slight increases that are not explained by their changing demographics.
- As crime rates fell and communities diversified, relationships between crime and community demographic characteristics weakened significantly. The association between crime and community characteristics — like the proportion of the population that is black, Hispanic, poor, or foreign-born — diminished considerably.
The full report from the Brookings folks is available at this link.
Monday, April 25, 2011
Latest USSC federal sentencing data shows uptick in within-guideline sentences
I am pleased an intrigued to see that 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 FY11 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 2011. (Published April 19, 2011)
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 around 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, these latest numbers reveal a slight uptick in the total number of within-guideline sentences apparently as a result of a slight downtick in the number of judge-initiated below-guideline sentence.
Saturday, April 16, 2011
The distinctive whiteness of federal child porn offenders
As noted in this post, part of my plans for this weekend (besides watching lots of NBA playoff games) is trying to mine some interesting stories from the just-release FY2010 federal sentencing data now available here on the US Sentencing Commission's website. And the first datum that jumped out at me from the tables I started perusing concerns the race of offenders in each primary offense category as set forth in this table.
Specifically, if one looks closely at only those offenses in which 1000 or more cases were sentenced in FY 2010, one sees that in all but one notable instance, the percentage of offenders who were white is below 50%. For drug trafficking offenses, for example, only 26% of sentenced offenders were white; for firearm offenses, only 29% of sentenced offenders were white; for fraud offenses, only 47% of sentenced offenders were white. But for child pornography offenses, a full 89% of sentenced offenders in FY 2010 were white. (I have sometimes joked that, for federal sentencing purposes, kiddie porn is kind of like the white guys' crack, and this data highlights this (useful?) analogy is true in at least on notable way.)
One could (and perhaps should) put lots of spin on these racial demographic realities of federal offense sentencing. For this post, however, I just want to note the outlier reality of child porn offenses and see what others (particularly federal sentencing practitioners) might want to say about it.
Friday, April 15, 2011
US Sentencing Commission releases final FY10 federal sentencing data and annual report
Though I am hoping to finally get my golf clubs some work this weekend, I know I also will be giving my printer something to do because the US Sentencing Commission has just posted on its website a bunch of new sentencing data and analysis. Specifically, here is the e-mail notice I just got via the USSC:
Commission releases FY2010 Annual Report & FY2010 Sourcebook. In this publication the Commission separately reports, for the first time, data for "Child Pornography" offenses, reflecting the fact that these cases now account for more than 2% of all cases reported to the Commission in fiscal year 2010.
I hope to mine some interesting stories from this new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is a lot of "there there" in these new USSC documents.
Tuesday, April 12, 2011
Tennessee Supreme Court endorses expert testimony concerning IQ of condemned
As explained in this local article, on Monday the "Tennessee Supreme Court ruled ... that lower courts may look at more than IQ numbers in determining whether a death row inmate is intellectually disabled and thus ineligible for execution." Here is more on the ruling:
In ruling on the case of a Memphis man on death row for more than 30 years, the high court said judges also may consider expert witness opinions to determine whether a test score accurately reflects a person’s functional IQ.
“We find that (state law) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated,” Justice William Koch Jr. wrote in the court’s unanimous opinion....
Under Tennessee law, mental retardation, now termed intellectual disability, means significantly below-average intellectual functioning with a functional intelligence quotient of 70 or below; deficits in adaptive behavior, and the intellectual disability must have been manifested by age 18.
The Supreme Court, however, said the law does not indicate what types of evidence may be considered and said there is no requirement that IQ scores be accepted at their face value. The court said the lower courts should have considered testimony from two defense psychologists who said Coleman is intellectually disabled.
The full 46-page ruling in Coleman v. Tennessee, No. W2007-02767-SC-R11-PD (Tenn. April 11, 2011), is available at this link.
Monday, January 03, 2011
"Overview of Federal Criminal Cases: Fiscal Year 2009"
The title of this post is the title of this data-filled document produced by the U.S. Sentencing Commission, which is now available via the USSC website. Here is a snippet from the start of the publication:
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 2009, the increase was 6.4 percent over the number of such cases in fiscal year 2008. Cases involving immigration, drugs, firearms, or fraud 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 eight fiscal years. In fiscal year 2009, these cases accounted for more than 80 percent of all cases reported to the Commission.
Immigration offenses continued to be the fastest growing segment of cases in the federal system. In fiscal year 2009, there were 25,927 immigration cases reported to the Commission, an increase of nearly 4,500 cases from the prior fiscal year. In the last ten fiscal years, the number of cases of this type has increased by 168 percent, while the total federal caseload has grown by less than 50 percent (46.9%). As a result, the portion of the annual caseload attributable to immigration cases has increased from 17.5 percent in fiscal year 1999 to 32.2 percent in fiscal year 2009. Immigration cases are now the most common serious federal crime.
The number of drug offenses has remained relatively constant for the last five years, although the portion of the criminal caseload attributable to those cases decreased to 30.3 percent in fiscal year 2009 compared with 34.7 percent in fiscal year 2004. Firearms offenses were 10.2 percent of the caseload in fiscal year 2009, a decrease of 1.7 percentage points over the five-year period. The proportion of fraud offenses over that period also was relatively stable at 9.5 percent in fiscal year 2009, as compared with 10.6 percent in fiscal year 2004.
Tuesday, December 21, 2010
Newest BJS data on correctional population shows historic first decline
Perhaps finally providing that what goes up must eventually come down even in incarceration nation, the Bureau of Justice Statistics announced today via this press release "the first measured decline in the total number of adults under correctional supervision [in the United States] since BJS began reporting these populations in 1980." Here is more:
One in 32 adults, or about 3.1 percent of U.S. adult residents, was under correctional supervision at yearend 2009, down slightly from the rate of supervision in 2008.
Although comparatively small, decreases in the probation population (down by 40,079 offenders) and the parole population (down by 5,526 offenders) were the first observed decreases since BJS began annual data collections on these populations in 1980. At yearend 2009, 4,203,967 adults were on probation, and 819,308 were under parole or other post-custody supervision....
Among incarcerated offenders, the number of jail inmates totaled 760,400 at midyear 2009 (down 2.2 percent from 2008). The number of prisoners under the jurisdiction of state and federal correctional authorities increased by 0.2 percent (3,981 prisoners) during 2009 to reach 1,613,740 at yearend.
The growth in the prison population during 2009 was the slowest annual increase in the current decade and marked the third consecutive year of a declining rate of growth in the prison population. While the federal prison population increased by 3.4 percent (up 6,838 prisoners), the state prison population had the first measured decline (down 0.2 percent or 2,857 prisoners) since 1977.
Sentencing nuts and/or data junkies eager in mining these numbers further should be sure to check out this series of new reports released today by BJS:
Correctional Populations in the United States, 2009: Presents summary data on the number of adults under some form of correctional supervision in the United States at yearend 2009. Correctional supervision includes adults supervised in the community on probation or parole and those incarcerated in prison or local jails.
Probation and Parole in the United States, 2009: Presents the number of adults under community supervision (probation or parole) at yearend 2009 and the rate of change in both populations during the year.
Prisoners in 2009: This annual report presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2009, collected from the National Prisoner Statistics series.
DPIC releases year-end death penalty report for 2010
As is its tradition every December, the Death Penalty Information Center has now released its annual year-end report on death penalty developments in 2010. This DPIC report, which has in bold on its first page the claim that "As Use of the Death Penalty Continues to Decline, a Majority of Americans Support Repeal; Executions Drop 12% -- Death Sentences Remain Near Historic Lows," once again marshals the latest death penalty data to claim that the capital punishment is dying a slow death in the United States. Here are parts of the report's introduction:
The death penalty continued to be mired in conflict in 2010, as states grappled with an ongoing controversy over lethal injections, the high cost of capital punishment, and increasing public sentiment in favor of alternative sentences. Executions dropped by 12% compared with 2009, and by more than 50% since 1999. The number of new death sentences was about the same as in 2009, the lowest number in 34 years....
Although 35 states retain the death penalty, only 12 carried out executions in 2010, mostly in the South, and only 7 carried out more than one execution. Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and several other states.
I see the capital punishment facts a bit differently, as it seems to me that we have achieved a point of relative stability around the use of the ultimate punishment in the US. Over the last five years, the US has had right around 50 executions and a few more than 100 death sentences imposed each and every year. Whether these numbers for executions and death sentences are idea might be subject to lots of debate, but I think it is pretty clear that they represent the new normal for capital punishment in the United States.
My view my be influenced by the reality that Ohio has been a death penalty growth state in recent years. My local paper has this new piece, headlined "Ohio only state to execute more in 2010," discusses this reality.
Tuesday, December 07, 2010
New data set from the US Sentencing Commission on federal sentencing
Fourth 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 fourth quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2010)
The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 80,000 federal cases sentencing in Fiscal Year 2010, 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 1.8% of all cases having judges imposing above-range sentences and 17.9% of all cases prompting judges to impost below-range sentencing).
Thursday, September 16, 2010
"Should a Judge Consider the Cost of a Sentence?"The title of this post is the headline of this effective new piece at ABC News discussing Missouri's fascinating new sentencing tool providing "case-by-case invoices" of punishment costs to judges at the time they make sentencing decisions (details here). Here are excerpts from the ABC News piece:
When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.
The information is part of an offense summary culled from statistics kept by the state's Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend....
The program was unveiled last month by the Missouri Sentencing Advisory Commission (MOSAC) as a tool to help judges determine the best chances for reducing recidivism with cost-effective punishments.
A judge or lawyer is able to enter specific information on the MOSAC website, such as an offender's prior criminal history, the crime committed, his education and employment status. The computer then uses statistics from other actual sentences to process the information.
For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.
However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent. Missouri Supreme Court Judge Michael Wolff, chairman of the state's sentencing commission, said the new tool considers cost, but focuses on recidivism....
Judge Wolff asked, "Why not ask the question of how much this is going to cost?" But there are critics of the program.
Jennifer Joyce, the prosecuting attorney in the city of St. Louis, said, "It's ultimately cheaper to prosecute no one." She isn't opposed to the information being available for judges and taxpayers, or to the concept of alternative sentencing, but she is concerned that sentencing decisions will be made on an economic basis.
"Strictly speaking, economics is irrelevant to the decision that the judge makes, which is about public safety," she said. "If we are going to use economics as a basis to making these decisions, then we have to consider the economics of the victim and the community."
Judge Gary Oxenhandler, who sits on the 13th Judicial Circuit and has used the new tool, disagreed with her conclusion. He said cost is only one of many factors a judge should consider, including the threats to the community and the impact on the victim. "I want as much information as I can get," he said.
"Any place a judge can obtain information, that is an important source. The prosecution has its goals, the defense has its goals. Our job is to come up with the right amalgam that is going to best serve all these interests between protection of the public and punishment for the offender."
Helpfully, everyone can see an example of the data reports on recidivism and costs on the last two pages of the latest Smart Sentencing bulletin from the Missouri Sentencing Advisory Commission. I encourage everyone to check out the specifics of what Missouri is doing for its sentencing judges and to think about whether and how sentencing judges (and litigants) in all systems ought be get the benefits of all this helpful data.
September 16, 2010 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, September 14, 2010
"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:
The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007). In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models. Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.
We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels. Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses. We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.
Thursday, August 19, 2010
New US Sentencing Commission report on changes to criminal history computationThe US Sentencing Commission has this new reportup on its website that will likely not get much old or new media attention, but should be of great interest to hard-core federal sentencing nerds like me. First, here is how the USSC describes the report on its home-page:
Computation of Recency Criminal History Points under USSG §4A1.1(e): This document provides certain information considered by the Commission as part of its determination to amend the guidelines to eliminate the consideration of "recency" points provided in USSG §4A1.1(e). That amendment, amendment number 5, currently is pending before Congress as part of the package of amendments submitted to Congress on April 29, 2010. The amendment has a specified effective date of November 1, 2010.
Now here is part of the summary at the end of this report which spotlights why this is a big deal for those who are involved day-to-day with federal sentencing law and practice:
In fiscal year 2009, the applicability of the recency provision was considered in 38,850 cases, all of which necessarily involve defendants in Criminal History Category II or higher. The provision ultimately was applied in 14,548 of these cases (37.4% of 38,850). In two-thirds of the cases receiving recency points, the offender received two additional points for USSG §4A1.1(d) (status) (9,921 of 14,548, 68.2%). Of the 14,548 offenders receiving any recency points, these points had an impact on the offender’s calculated criminal history category in only 4,419 cases (30.4% of 14,548 recency applications).
This review also examined the utility of this subsection in predicting recidivism. While the Commission does not have recidivism data on non-citizens, with respect to United States citizens, Commission research demonstrates that including recency in the criminal history calculation has minimal predictive power. Based on the analysis of Commission recidivism data on United States citizens, the inclusion of recency points improves the prediction that a recidivist has a higher criminal history score (compared with a non-recidivist) in just ten of 3,018 comparisons for which the remaining subsections of USSG §4A1.1 alone did not correctly predict the higher.
The prison impact analysis revealed that if recency points were not available in fiscal year 2009, 4,189 of the 14,048 offenders receiving recency points would have moved to the next lower criminal history category, resulting in a reduction in their average sentence from 49 months to 41 months (a 16.3% average decrease). After five years, eliminating recency points is estimated to save 1,391 prison beds.
In other words, this report reveals that a seemingly minor "tweak" concerning the calculation of criminal history points under the sentencing guidelines could and would impact nearly as many federal sentencing cases as any of the the (much-higher-profile) recent changes to crack sentencing rules.
In turn, this report also suggests that if (and when?) this criminal history "tweak" officially becomes law this November, lots and lots of current federal prisoners should be very eager for the US Sentencing Commission to give this change retroactive application. If the USSC makes this change retroactive, it is possible that a sizable number of current federal prisoners would have an opportunity to request and receive reduced sentence.
Wednesday, June 23, 2010
BJS reporting state prison population down almost 3,000 in 2009, while fed population rose over 6,800As detailed in this official press release from the Bureau of Justice Statistics, in 2009 "the number of prisoners under jurisdiction of state correctional authorities decreased by 2,941 inmates (down 0.2 percent)." This is big news because it represents "the first decline in the state prison population since 1972." But the total prison population in incarceration nation still grew because in 2009 the "federal prison population increased by 6,838 (or 3.4%) which accounted for all of the increase in the U.S. prison population." Here are more details from the BJS press release:
Twenty-four states experienced decreases in their prison populations and 26 had increases. Six states reported declines of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069). States reporting the largest increases included: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282) and Arizona (up 1,038)....
By yearend 2009, the U.S. prison population (state and federal prisoners combined) reached 1,613,656, increasing by 0.2% during the year. The increase of 3,897 prisoners was the smallest annual increase during the current decade.
As of June 30, 2009, state and federal prisons and local jails had custody over 2,297,400 inmates, a decrease of 0.5 percent since yearend 2008. This decrease resulted from the 2.3 percent decline of inmates held in local jails, which hold over a third of the custodial population each year.
Midyear 2009 incarceration rates for inmates held in custody in prisons or jails differed by race and gender. Black males, with an incarceration rate of 4,749 inmates per 100,000 U.S. residents, were incarcerated at a rate more than six times higher than white males (708 inmates per 100,000 U.S. residents) and 2.6 times higher than Hispanic males (1,822 inmates per 100,000 U.S. residents). Black females (with an incarceration rate of 333 per 100,000) were more than two times as likely as Hispanic females (142 per 100,000) and over 3.6 times more likely than white females (91 per 100,000) to have been in prison or jail on June 30, 2009.
I am not surprised that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction. One more reason to root for local control on most crime and punishment issues.
All the details of this new data run can be found in this new BJS publication, titled "Prisoners at Yearend 2009–Advance Counts."
Tuesday, June 01, 2010
New district court sentencing data now available 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:
Second 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 second quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2010)
The new data continue to show remarkable stability in trends in the application of the advisory federal guideline sentencing system: these data show, yet again, prosecutors and judges moving just a little further away from the guidelines, with now 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in more than 26% of all cases. (Figures A and B and Table 4 show these long-term trends most clearly.)
Not long after the 2008 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 continue to suggest that the new Obama judges and new Obama US Attorneys may be, very slowly but very surely, continuing to help the federal sentencing system drift away from the anchors established in the federal guidelines.