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January 14, 2016

"More Prison, Less Probation for Federal Offenders"

The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years.  Here is the heart of the text of the document (with my emphasis added):

Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.

Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.

Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.

In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.

January 14, 2016 at 02:42 PM | Permalink


Yes, one of the little talked about but huge powers that prosecutors have is the decision not to prosecute. This power is magnified a 100 fold in our system of dual sovereigns (which violates DJ IMO but that is a separate question.) The fact is that many crimes can be prosecuted at both the state and the federal level and federal prosecutors will manipulate that to get the results they want. If they think the crime is nothing serious, they will let the locals prosecute it but if they think the crime is serious they will take it themselves.

This results in a terrible catch 22. If one is going to be in prison it's better to be in the federal system but if one gets prosecuted by the state one's likelihood of never seeing prison goes up. So what is the alleged criminal supposed to hope for?

Posted by: Daniel | Jan 14, 2016 4:27:30 PM

If federal prosecutors are exercising their discretion appropriately, shouldn't they be prosecuting the most serious cases? And, if they are prosecuting the most serious cases shouldn't we expect to see longer prison sentences. For example, if there is a fraud scheme that causes a loss of $100,000 the feds will likely not prosecute it. Why? Because the defendant would receive probation (the same thing he will receive in state court), so it makes sense to have the case handled in federal court. On the other hand, if there is a fraud scheme that has caused $5,000,000 in loss it will usually be prosecuted by the feds. Why? Because it is a more serious fraud. And, the defendant will likely go to federal prison. Moreover, the state may not have the resources or expertise to prosecute such a large fraud case. In my opinion, federal prosecution should be reserved for serious crimes and/or seriously dangerous recidivists. If that model is followed, then we shouldn't see many federal defendants on probation--because they don't qualify for it.

Posted by: Shouldn't it be this way | Jan 15, 2016 6:53:50 AM

Correction to my prior post: It should say "Because the defendant would receive probation (the same thing he will receive in state court), so it makes sense to have the case handled in STATE court."

Posted by: Shouldn't it be this way | Jan 15, 2016 6:55:43 AM

One of the main reasons Kennedy and other Democrats supported the SRA is that it was thought too many white collar defendants receive probationary sentences in comparison to drug offenders. This was also, at least in part, the rationale behind limiting consideration of family ties -- if you do that, it'sl largely going to benefit the defendants who are best off already.

Posted by: Jay | Jan 15, 2016 8:44:40 AM

@ Shouldn't it be this way.

The problem lies in the very first word of your reply, IF. The difficulty is that there is no meaningful check on this power. The only way to get rid of an US Attorney is to fire his boss, the President. And that is a major issue for just one or two wayward prosecutors. So in my view the answer is no, it shouldn't work this way. The US Attorneys have too much unchecked power and as a country we should not rely on their "goodwill" to do their job. SCOTUS has opined on a similar issue before, when it says that a promise by the Executive to stay within the Constitution cannot save an otherwise unconstitutional statute. Likewise, a promise by the US Attorneys to be good little boys cannot save the fact that they have too much power to begin with.

Posted by: Daniel | Jan 15, 2016 1:44:46 PM

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