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.
Tuesday, May 25, 2010
"Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges?"The title of this post is the title of this new article authored by two economists, Beth Freeborn and Monica Hartmann, which appears in the June 2010 issue of the Journal of Empirical Legal Studies. Here is the abstract:
This research studies the impact of changes to judicial discretion on criminal sentencing outcomes. The 2003 Feeney Amendment restricted federal judges' ability to impose sentences outside of the Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we show that the amendment reduced downward departures by 5 percent. Controlling for characteristics of the crime and the offender, we find that the Amendment increased average prison sentences by about two months. There is no evidence that judges adjusted offense levels or criminal history in order to circumvent the Amendment.
Thursday, April 29, 2010
"The Stability of Case Processing and Sentencing Post-Booker"The title of this post is the title of this notable empirical paper that I just noticed via SSRN. The piece is authored by Jeffery Todd Ulmer and Michael Thomas Light, and here is the abstract:
In January of 2005, the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The uncertainty regarding how Booker may change sentencing practices has been a major discussion among legal scholars. The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. This is one of the first empirical studies to examine if and how Booker has changed federal sentencing.
We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan. Using survey data taken from judges, lawyers, and probation officers in federal courts, we examine how practices in courts may have changed post-Booker. We then examine several of the central questions surrounding whether Booker has increased disparity using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the post-Booker/Fanfan period (2006-2007). The results from the survey data show that while some sentencing practices have changed slightly, Booker has not dramatically altered them. And from the USSC data we find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and interdistrict variation in the effects of extralegal factors on sentencing have not increased post-Booker. Thus, allowing judges greater freedom to exercise discretion does not necessarily result in increased extralegal disparity.
Monday, April 26, 2010
"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation"The title of this post is the title of this new must-read empirical work available via SSRN and in print in Justice Quarterly. Here is the abstract:
The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system’s commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts. We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures. Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000-2002, along with aggregate data on federal district court caseload features.
We find that meaningful trial penalties exist after accounting for Guidelines-based rationales for differentially sentencing those convicted by guilty plea versus trial. Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties. In addition, trial penalties are lower for those with more substantial criminal histories, and black men. Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.
Sunday, March 21, 2010
Latest new federal sentencing statistics from the US Sentencing Commission
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 FY10 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 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 17, 2009)
The new data continue to show a very slow and steady migration away from guideline ranges: these data show that now barely 55% of all federal sentences are within the calculated guidelines range; prosecutors, who now requested departures in over 26% of all cases, continue to increase be the primary driving force behind below-range sentences.
Thursday, March 11, 2010
Latest federal sentencing data show continuing slow migration away from guidelines
The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Final FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 11, 2010)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system, with a continuing slow migration away from the guidelines due to slight increases in prosecutor-initiated and judge-initiated non-guideline sentences. Specifically, these data show that for FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases, and with judges ordering an above-guideline sentencing in 2% of all cases and initiation a below-guideline sentence in nearly 16% of all cases.
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 the trend of a very slow, but not seemingly steady, migration away from guideline ranges. But, in general terms, these data still show only gradual evolutions, not any obvious revolutions, in federal sentencing practices and outcomes at the district court level
Wednesday, December 09, 2009
A reentry perspective on the latest official prisoner dataI received this morning a copy of this notable press release from the National Reentry Resource Center providing a reentry perspective on the latest official prison data. Here are excerpts:
The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008." BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.
Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.
Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)
Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.
Prisoners in 2008 (NCJ-228417), by William J. Sabol, Heather C. West, and Matthew Cooper, can be found here. Probation and Parole in the United States, 2008 (NCJ-228230), by Lauren E. Glaze and Thomas P. Bonczar, can be downloaded here.
Wednesday, December 02, 2009
New federal sentencing data from the US Sentencing CommissionI am pleased to discover that the US Sentencing Commission has some fresh new sentencing data now up on its website. Here are links to the new data runs, with descriptions from the USSC's website:
Fourth Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2009)
Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data in this report represents those motions decided by the courts through November 10, 2009 and for which data was received, coded, and edited by the Commission as of November 17, 2009.
I hope to find the time and energy before too long to pour through this new data and report on anything special that catches my eye. Readers are welcomed and encouraged, of course, to use the comments to the same end.
Saturday, September 26, 2009
Notable buzz about proportionality review in capital casesA helpful reader passed along some helpful information about recent developments concerning proportionality review in capital cases. Here are the basics:
A cert petition in Holmes v. Louisiana, which questions whether the operation of Louisiana’s capital punishment scheme and the State Supreme Court’s proportionality review violate the Eighth Amendment’s guarantee against arbitrariness in capital sentencing, was recently spotlighted on SCOTUSblog's Petitions to Watch List here. Notably, Charles Ogletree & the Houston Institute for Racial Justice at Harvard Law School are counsel of record. And they have posted this press release on the case.
Relatedly, Bidish Sarma has an interesting little piece on proportionality review that was just posted on the Cardozo Law Review's online site, which can be accessed via this blog post.
Tuesday, September 22, 2009
"Immigration Prosecutions at Record Levels in FY 2009"The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:
The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.
The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.
These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws. Whether it amounts to change we can believe in is, of course, a distinct question.
Monday, September 21, 2009
A timely examination of data and integration amidst California's corrections crazinessProfessor W. David Ball has recently put up on SSRN on this timely analysisof California's sentencing and corrections challenges, which is titled "E Pluribus Unum: Data and Operations Integration in the California Criminal Justice System." Here is the abstract:
The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals. An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.
While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution). As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination. Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.
Some recent posts on related issues in California and elsewhere:
- Federal judicial panel orders California to drastically cut prison population
- California begins SCOTUS appeal process for federal ruling ordering prisoner release
- Updates on all the prison craziness in California
- Editorial suggests why federal judges have had to be involved in California prison reform
- California's court-ordered plan for prison population reductions to come up short
- Details on California's not-quite-complete prison population reduction plan
- Economic necessity finally forcing long-needed reform in California
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
- "Prison spending still shackles state budget"
- Dueling persectives on proposed California prison reforms and a new challenge
- Trickle-down realities of the prison economy in California
- Latest news on sentencing and prison reform in California
Tuesday, September 08, 2009
Another notable uptick in below-guideline sentences in latest data run from USSC
The US Sentencing Commission has some notable new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the third quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 8, 2009)
The new data shows the continuation of a trend of an increase in below-guideline sentence (which I first noted in this post and which I tentatively predicted in this post right after President Obama's election). This data run shows another (still small but seemingly significant) uptick in below-guideline sentences imposed by judges. Specifically, in the three quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases. In the three quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.8% of all cases.
Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in more than 25% of all cases). And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.
The latest data might be spun in lots of different ways, and it will be especially interesting to see how the on-going internal study group inside the Justice Department characterizes and responds to these trends.
Monday, July 20, 2009
Good (and surprising) news about crime rates
This new piece from the Washington Post, which is headlined "Major Cities' Plummeting Crime Rates Mystifying," provides both good news on crime rates and a new reason to wonder if anyone can assess with any confidence what makes crime rates rise and fall. Here are excerpts:
Violent crime has plummeted in the Washington area and in major cities across the country, a trend criminologists describe as baffling and unexpected. The District, New York and Los Angeles are on track for fewer killings this year than in any other year in at least four decades. Boston, San Francisco, Minneapolis and other cities are also seeing notable reductions in homicides.
"Experts did not see this coming at all," said Andrew Karmen, a criminologist and professor of sociology at the John Jay College of Criminal Justice in New York.... Criminologists have different theories about why crime is down so much, although many agree that the common belief that crime is connected to the economy is false....
The District is on track to have fewer killings than in any year since 1964, when the population was about 760,000 and Vietnam War protests were just beginning. In the years since, the city has struggled at times with civil unrest, the arrival of crack cocaine and the rise of street gangs. In 1991, the District was known as the murder capital of the United States, recording 479 that year. This year, there have been 79....
Chuck Wexler, executive director of the Washington-based Police Executive Research Forum, said the drop in homicides this year is notable, especially considering the weather. "This does come at an important time," he said. "We're midway through summer, and summer is when you see the most significant increase in street violence. Departments have had to be more strategic in terms of gangs and hot spots." Wexler said that crime isn't down everywhere. Baltimore and Dallas are among some cities experiencing a higher number of killings compared with last year.
Gary LaFree, a criminology professor at the University of Maryland, said it has taken police decades to figure out how to effectively target crime. "In the '60s, crime was like an act of God, like a tornado or earthquake," LaFree said. "Where policing has changed is that we've gotten the idea this is a problem we created and there are human solutions to it. Obviously, crime is not randomly distributed. It is connected to hot spots in cities and other areas."
LaFree and others agree that crime doesn't automatically go up when the economy is poor. Property crime is also trending down in many jurisdictions, including the District, Prince George's and Montgomery. The FBI reported last week that bank robberies across the country fell in the first quarter of the year, with 1,498 reported, compared with 1,604 in the first quarter of 2008. Criminologists point to the Great Depression in the 1930s as a time of relatively low crime compared with the Roaring Twenties, when the country experienced more violence.
Okay team, in an effort to generate some debate, I will throw out two not-quite-absurd hypothesis for the unexpected drop in crime being reported here:
Hypothesis #1 — More guns, less crime: In the wake of the Supreme Court's ruling in Heller and (silly?) concerns about possible new gun control efforts under and Obama Administration, gun sales have been up a lot over the last year. Perhaps this new encouraging crime data reveals that more people packing heat really can help reduce crime rates.
Hypothesis #2 — More hope, less crime: The election of Barack Obama, who ran on a campaign of hope, surely embodies the cliche that anyone can grow up in America and become President. In addition to breaking barriers with historic appointments to the positions of Supreme Court Justice, Attorney General and Solicitor General, President Obama has often preached messages of personally responsibility as well as hope. Perhaps giving more folks good reasons to hope leads to fewer folks having bad reasons to commit crimes.
Tuesday, June 02, 2009
A (significant?) uptick in below-guideline sentences in latest data run from USSC
The US Sentencing Commission has some notable new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Second Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the second quarter of fiscal year 2009 [which runs through March 31, 2009]. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published June 1, 2009)
The new data perhaps suggest a trend that I tentatively predicted in this post right after President Obama's election in which I suggested that the incoming administration might impact federal sentencing practice before we see any formal changes in policy. Notably, though the new data run pre-dates the Obama Administration's announcement of a new attitude about crack sentencing policy and any other formal discussion of policy changes, this data run shows a (small but seemingly significant) uptick in below-guideline sentences imposed by judges. Specifically, in the two quarters just before President Obama's election, judges decided on their own to impose a below-guideline sentence in roughly 13.8% of all cases. In the two quarters since then, judges decided on their own to impose a below-guideline sentence in roughly 15.3% of all cases.
Of course, it remains the case that most below-guideline sentences still result from prosecutors requesting a below-range sentence (this happens in roughly 25% of all cases). And, as has always been the reality in the federal sentencing system both before and since Booker, one can identify a number of large inter-circuit and inter-district variations in how many sentences fall within or outside calculated guideline ranges.
Thursday, April 16, 2009
The latest, greatest federal sentencing data from the USSC
The US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published April 15, 2009)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 60% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in nearly 25% of all cases.
Not long after the election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers reveal a slight uptick in the number of judge-initiated departures and a slight down-tick in the number of prosecutor-initiated departures. But these changes seem to be too slight at this early stage to assert that the federal sentencing times are a-changing.
Wednesday, March 25, 2009
Final FY2008 quarterly sentencing data from US Sentencing Commission
Just posted on the US Sentencing Commission's website is a finalized set of federal sentencing data for fiscal year 2008. Here is how the USSC describes this latest data doc:
Final FY08 Quarterly Sentencing Update (Published March 24, 2009): An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2008. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Monday, December 15, 2008
Early federal sentencing data presents from the US Sentencing Commission
Data junkies, rejoice! The number-crunching elves working inside the US Sentencing Commission (which is inside the Beltway just south of the North Pole) have finished making the present that every federal sentencing nerd like me wants for the holidays: new batches of federal sentencing data. Specifically, now to be found on the USSC's main webpage are these data-licious announcements:
December 2008 Preliminary Post-Kimbrough/Gall Data Report: An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through September 30, 2008. This report was prepared using data received, coded, and edited by the Commission by November 3, 2008.
FY2008 4th Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on September 30, 2008 and which were received, coded, and edited by the Commission by November 3, 2008.
Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of December 8, 2008.
I hope to get a chance to consume and crunch all this new data soon, but in the meantime perhaps readers can identify any particular sentencing statistics that jump out from all this new federal data.
Wednesday, November 12, 2008
Federal sentencing through history: "Theives Treated Tenderly."
An insightful reader sent me this link to a fascinating little New York Times story published in December 1886. The quote above is the headline from this story published 122 years ago; here is the first sentence and some later snippets from this reporting of 19th-century federal sentencing news that was fit to print:
The unusual leniency with which the case of H. Robertson Jr. was handled by Judge Benedlot in the United States Circuit Court a few days ago has brought to the attention of lawyers and others who have business with the Federal authorities the extremely light sentences imposed upon persons convicted of violating the postal laws....
It will be seen that in no case has the sentence been for a longer term than one year. In speaking of the tenderness with which Post Office cases were handled, Gen. Foster, the Assistant United States DistrictAttorney, said that he could not consider himself to blame as he had in nearly all the cases secured convictions. He could not regulate the sentences because that rested entirely with the Judges.
Wednesday, September 17, 2008
Lots of new federal sentencing data from the USSC
I am so very pleased to discover that the US Sentencing Commission has a lot of new data on its website this morning. Here is what's there as described by the USSC (with links):
- September 2008 Preliminary Post-Kimbrough/Gall Data Report: An updated set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2007 through June 30, 2008. This report was prepared using data received, coded, and edited by the Commission by September 8, 2008.
- FY2008 3rd Quarterly Sentencing Update: An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2008. The numbers are prepared using data from cases in which the defendant was sentenced by the close-of-business on June 30, 2008 and which were received, coded, and edited by the Commission by September 8, 2008.
- Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The report represents those cases considered by the courts through August 26, 2008 and for which data was received, coded, and edited by the Commission as of August 29, 2008.
After I get a chance to chew on all these data, I will comment in a separate post concerning anything that seems especially notable in the numbers.