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April 24, 2022

US Sentencing Commission releases FY 2022 first quarter sentencing data (with notably low percentage of within-range sentences)

This weekend I noticed that the US Sentencing Commission just published here its latest quarterly data report which sets forth "1st Quarter 2022 Preliminary Cumulative Data (October 1, 2021, through December 31, 2021)."  These new data provide another official accounting of how the COVID pandemic has impacted federal sentencing.  Specifically, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 has seen a rebounding of total cases sentenced, but this latest quarter had just over 15,000 total federal cases sentenced.  Figure 2 also shows that a steep decline in immigration cases continues to primarily accounts for the decrease in overall cases sentenced.

As I have noted before, the other big COVID era trend is a historically large number of below-guideline variances being granted, and this trend has now extended over the last six quarters (as detailed in Figures 3 and 4).  Though one possible explanation for this trend is that more federal judges are imposing lower sentences because of COVID-related concerns, other data suggest that other factors may be in play.  Specifically, Figure 5 shows that the average guideline minimum and average sentences for all cases has been historically high during the COVID era, which is likely a product of the altered case mix with fewer immigration case and perhaps also because federal prosecutors during COVID are more likely to be moving forward with the most aggravated of cases.  With the "Average Guideline Minimum" and also the "Average Sentence" higher in all COVID-era quarters, we may be seeing a higher percentage of below-guideline sentences largely because the guideline benchmarks are particularly high. 

Whatever the full explanation, in this most recent quarter the data show that only 41.6% of all federal sentences are imposed "Within Guideline Range."  I think this number around the lowest it may have ever been.  And yet, this still mean that more than two out of every five cases are imposed within the guidelines while all the others are still sentenced in the shadow of the guidelines.  (Figure 5 shows how closely the sentences actually imposed and guideline ranges track each other.)  So, even with a notably low percentage of within-range sentences, the guidelines still matter a lot (and many of them remain badly broken).  We should all hope that there will be appointments to the US Sentencing Commission soon so that the government agency tasked by Congress with establishing and improving "sentencing policies and practices for the Federal criminal justice system" can finally get back into full swing.

April 24, 2022 at 02:14 PM | Permalink


A long way back to the luck of the draw. Very disheartenting.

Posted by: Bill Otis | Apr 24, 2022 8:52:21 PM

Mr. Otis,

"Luck of the draw" is inextricably embedded in the body of the criminal justice system.
Isn't it just the "luck of the draw" as to which prosecutor is assigned a case, as well as which judge is assigned, and in the case of indigent defendants, which public defender? All such turns of "the wheel of chance" do in fact greatly contribute to the ultimate outcome. On any given day, a prosecutor may offer a deal to which attaches a severe penalty, and on another day, in equally similar circumstances, offer a deal with a comparatively less severe penalty. It's all just left to chance, no? While all the variables are far too extensive to list, a couple of common examples that come to mind include: Does the prosecutor and the defense attorney have a good or bad personal relationship? Is the public defender's office adequately funded and staffed, especially with competent defense investigators? Does the public defender have an over-abundance of cases assigned to them, which will impinge on their decision to counsel the client to either go to trial or take the deal? And now and again, does the judge (consciously or otherwise) feel pressures to impose either greater or less severe penalties (e.g., as a result of public congressional hearings in which another judge is criticized for imposing too lenient or too harsh a sentence on past cases of a certain type, such as child pornography offenses?)

Posted by: SG | Apr 24, 2022 10:57:07 PM

SG --

"'Luck of the draw' is inextricably embedded in the body of the criminal justice system."

Not to mention in the rest of life. But it's for precisely this reason that we should do what we can to narrow rather than expand the chance elements we unavoidably confront.

Posted by: Bill Otis | Apr 25, 2022 9:22:14 AM

In a couple of years we will reach Booker’s 20th anniversary. Congress could have fixed the now-broken SRA, and yet it hasn’t. Not only that, fixing it does not appear to rank very high on either party’s list of priorities.

I suspect there is no imaginable reform that would pass with the kind of bi-partisan majority the SRA had. That is probably why Congress has chosen to leave it alone. Even worse, very few Members of Congress seem to care very much that the USSC lacks a quorum. I mean...sure, they probably would agree that it’s not a good situation, but they’re not “pound the table” agitated about it either.

Posted by: Marc Shepherd | Apr 25, 2022 10:32:51 AM

Marc Shepherd --

I largely share your concern and said so in the Federalist Society's magazine, "Engage," in an article Doug was kind enough to feature in this post: https://sentencing.typepad.com/sentencing_law_and_policy/2011/06/the-slow-sad-swoon-of-the-sentencing-suggestions.html

Posted by: Bill Otis | Apr 25, 2022 10:48:45 AM

The link to the full article is now broken. I tend to agree with Bill that it's probably a waste of government resources to produce mere “suggestions” that are disregarded more than half the time anyway.

With that said, Doug is probably right that the Guidelines have an anchoring effect. In other words, even when a judge sentences outside the guideline, s/he probably hews closer to it than if no guideline existed at all.

What is the value of a “suggestion”? I don’t know.

Posted by: Marc Shepherd | Apr 25, 2022 12:32:12 PM

Marc Shepherd --

This link might to better: https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/1IzxpHMqv9UKPPDE9p7H1Z5fclsJq9kK733I8dfl.pdf

Posted by: Bill Otis | Apr 25, 2022 1:55:43 PM

Yes, that worked.

Posted by: Marc Shepherd | Apr 25, 2022 5:09:18 PM

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