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September 10, 2017

Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?

The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission.  These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017."  The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year.  So, it can be a mistake to see trends or assert causal links based on just a little bit of data.  Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence.  That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences.  But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.

Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo.  But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.

September 10, 2017 at 03:22 PM | Permalink


In graduate school, we had a term to describe certain kinds of analyses that seems appropriate here: specious specificity. Table 12 reports percentages to one decimal place, which is appropriate for this type of presentation. The 20.0% reported for the 2nd quarter of FY2017 could have been rounded up from 19.96%. The 19.8% reported for the 3rd quarter of FY2017 could have been rounded down from 19.84%. Rounding introduces some error into the reporting and, therefore, one must take care when trying to interpret small differences.

Posted by: YellowDog | Sep 11, 2017 10:25:01 AM

An excellent point, YellowDog, and a primary reason I did not even blog about the 20.0% number in 2d Q of FY17 being the lowest number in more than 3 years. But I do not think I am jumping the gun too much by suggesting that a pattern may be emerging, and this is a pattern that it would seem AG Sessions and others pushing a "tough-on-crime" agenda want to see emerging.

What also should not be overlooked is the potential impact of even small changes in caseloads. Some CP and fraud cases prompt judge-driven below guideline sentences in nearly 2 our of every 3 cases; some firearm and violence cases prompt judge-driven below guideline sentences is less than 1 out of every 4 cases. If the feds start bringing more of the latter and less of the former cases, the total percentage of judge-driven below guideline sentences will go down, even if judicial sentencing behaviors do not change a whit.

Posted by: Doug B | Sep 11, 2017 11:06:44 AM

As a rule, one will not feel differences smaller than one third. As a rule, we are interested in feelings, for example the feeling of being safer in an area.

Posted by: David Behar | Sep 11, 2017 2:50:58 PM

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