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November 14, 2017

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 at 10:35 AM | Permalink


I have aa good example: Clayton Butts was given 50 years for procession of a stolen vehicle in Tulss Ok. His white counter partner didn't get any time, This was cruel and racist and more time than people who murdered and committed crimes against children and older people

Posted by: Brenda Pruitt | Nov 14, 2017 2:25:07 PM

wow, super surprising that the federal criminal justice system is racist.

Posted by: hgd | Nov 14, 2017 4:34:21 PM

People should read this methodological analysis before drawing any conclusion. It is old, so it is negligent to not apply it points.


Posted by: David Behar | Nov 14, 2017 5:10:08 PM

Many judges respond differently to mitigation. Many black defendants have adverse childhood experiences, but judges aren't always willing to give a lower sentence for reduced culpability because the person doesn't fall outside the "heartland." And the Commission itself acknowledges that it does not account for employment history and many other factors not available in the Commission's dataset. It also cannot account for probation officer recommendations and wherher the person was detained pretrual and unable to participate in rehab treatment.

Posted by: DB | Nov 15, 2017 6:39:37 AM

I always wonder in these cases about the variables considered. As I understand it, the analysis looked at the sentencing range. I would be interested in seeing the factors that contributed to that sentencing range. My understanding of the guidelines is that there can be different potential "added points" to the base offense (e.g. weight of drugs, use of weapons, etc.) that could lead to the final sentence. Additionally for some of the factors, like weight of drugs and amount of loss, the point system includes a range -- e.g. up to 1K is two points, 1K to 5K is four points, etc.

I could easily see judges who think that certain factors are more "aggravating" than others even if the ultimate point total is the same. I can also see a judge giving a sentence on the low end of the range to defendants who barely met the criteria for additional points and a sentence on the high end of the range to defendant who almost got bumped up to the next level. It would be useful to see if these types of issues explain some of the apparent disparity.

Additionally, it looks like the study considered factors separately (type of offense, guidelines range, criminal history, departures) rather than combining them to create subgroups. And other than breaking departures into government-sponsored downward departure for cooperation, other government sponsored downward departures, and non-government-sponsored downward departures, the study apparently did not look into the exact reasons for the downward departures (or upward departures). Again, I can see that some mitigating or aggravating factors might receive more weight from judges than others, and it would be useful to see if the presence or absence of those particular factors explained some of the apparent racial disparity.

Posted by: tmm | Nov 15, 2017 11:09:00 AM

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