US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, 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 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.