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.