Monday, June 27, 2022

US Sentencing Commission releases another recidivism report examining "status points" in criminal history calculations

Despite lacking a quorum, the US Sentencing Commission keeps churning out a remarkable amount of research in recent times, especially in the area of recidivism of federal offenders.  Today brings this notable notable USSC report on recidivism and criminal history under the title "Revisiting Status Points."  The term "status points" is a short-hard reference to the two points added to a defendant's criminal history score under guideline § 4A1.1(d) if he committed the offense while still serving a sentence in another case (eg, while being on probation or parole).  This webpage provides an overview and key findings from the new report:

Overview

In 2005, the Commission examined status points (addressed in §4A1.1(d)) as part of a broader analysis of how well the guidelines’ criminal history computation predicts recidivism.  This report revisits the examination of status points with greater focus, including a detailed analysis of their application and significance.  The report begins by outlining how criminal history is calculated under the guidelines and by reviewing prior Commission research on the association between criminal history and recidivism.  The report then examines how many offenders received status points in the last five fiscal years and compares them to offenders who did not receive status points.  Next, the report analyzes the rearrest rates for offenders with and without status points who were released from prison or began a term of probation in 2010.  Finally, the report considers how much status points contribute to the criminal history score’s prediction of rearrest.

Key Findings

In the last five fiscal years:

  • Over one-third of federal offenders (37.5%) received two “status points” under §4A1.1(d) as part of their criminal history scores. For 61.5 percent of such offenders, the inclusion of the two points resulted in a higher Criminal History Category.
  • The vast majority of offenders who received status points (92.6%) had criminal history scores that placed them in Criminal History Category III and higher, compared to a little less than half of offenders who did not receive status points (47.0%)....

Among offenders who were released in 2010:

  • Those who received status points were rearrested at similar rates to those without status points who had the same criminal history score. For example, among offenders whose criminal history score was seven, 69.6 percent of those with status points and 70.4 percent of those without status points were rearrested in the eight years after release.
  • Three-fifths (61.1%) of offenders who received status points had five or more criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically similar rearrest rate to offenders without status points who had the same number of points for prior sentences.
  • The remaining two-fifths (38.9%) of offenders who received status points had one to four criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically higher rearrest rate than offenders without status points who had the same number of points for prior sentences.
  • Status points only minimally improve the criminal history score’s successful prediction of rearrest — by 0.2 percent. With status points included in the calculation for eligible offenders, the score successfully predicts rearrest 65.1 percent of the time, compared to 64.9 percent of the time with status points removed.

June 27, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Tuesday, May 17, 2022

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

  • Residential Drug Abuse Program (RDAP)
    • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
    • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
       
  • Non-Residential Drug Abuse Program (NRDAP)
    • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
    • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

    Key Findings

    This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

    • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
      • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
      • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
    • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
      • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

May 17, 2022 in Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (2)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 05, 2022

Important new report explores "The Limits of Recidivism: Measuring Success After Prison"

26459-0309276977-450The quoted portion of this post is the title of this important new report released by the National Academies of Sciences, Engineering and Medicine.  Here is an account of this report from the NAS website:

Nearly 600,000 people are released from state and federal prisons annually. Whether these individuals will successfully reintegrate into their communities has been identified as a critical measure of the effectiveness of the criminal legal system.  However, evaluating the successful reentry of individuals released from prison is a challenging process, particularly given limitations of currently available data and the complex set of factors that shape reentry experiences.

The Limits of Recidivism: Measuring Success After Prison finds that the current measures of success for individuals released from prison are inadequate.  The use of recidivism rates to evaluate post-release success ignores significant research on how and why individuals cease to commit crimes, as well as the important role of structural factors in shaping post-release outcomes.  The emphasis on recidivism as the primary metric to evaluate post-release success also ignores progress in other domains essential to the success of individuals returning to communities, including education, health, family, and employment.

In addition, the report highlights the unique and essential insights held by those who have experienced incarceration and proposes that the development and implementation of new measures of post-release success would significantly benefit from active engagement with individuals with this lived experience.  Despite significant challenges, the report outlines numerous opportunities to improve the measurement of success among individuals released from prison and the report’s recommendations, if implemented, will contribute to policies that increase the health, safety, and security of formerly incarcerated persons and the communities to which they return.

The full report runs a full 200 pages, and this three-page pdf provides highlights.  And this press release also provides this additional overview and more summary details, and here is an excerpt:

Recidivism is an inadequate measurement of success after release from prison, says a new report from the National Academies of Sciences, Engineering, and Medicine. The report recommends researchers develop supplementary measures that evaluate success across multiple areas of a person’s life after prison — including employment, housing, health, social support, and personal well-being — and that measure interactions with the criminal justice system with more nuance. Federal efforts should be directed to developing national standards for recidivism data and new measurements....

“Our report draws on the expertise of individuals who have experienced reentry, those who work in corrections and reentry services, as well as victims’ advocates and many other communities — and it’s clear that it’s time we recognize the numerous shortcomings of relying exclusively on recidivism data,” said Richard Rosenfeld, Curators’ Distinguished Professor Emeritus of Criminology and Criminal Justice at the University of Missouri-St. Louis, and chair of the committee that wrote the report. “Better measures could open many doors for better decision-making and policy.”...

Recidivism is also limited in that it is a binary measure, says the report. Decades of research have shown that ceasing criminal activity is a process and may involve setbacks. Recidivism rates fail to capture indicators of progress toward the cessation of criminal activity, such as reductions in the seriousness of criminal activity or increases in time between release and a criminal event. Researchers should supplement recidivism rates with these measures of moving away from crime, the report says.

The report recommends the development of new measures of post-release success that take into account a number of factors in people’s lives after incarceration, including personal well-being, education, employment, housing, family and social supports, health, civic and community engagement, and legal involvement.  In particular, significant efforts — including by federal agencies — should be directed to developing national standards for measuring post-release success.  Creating national standards could make data easier to compare across programs and jurisdictions. Creating a website that contains core measures and data collection instruments could hasten development of these standards, the report says.

Federal agencies, including the National Institute of Justice, Bureau of Justice Statistics, Bureau of Justice Assistance, and National Institutes of Health, should convene research panels to assess new measures of post-release success.  These agencies should also solicit grant proposals from researchers and practitioners who work collaboratively with formerly incarcerated people to review new measures.

Researchers should also develop new ways to measure barriers to and facilitators of post-release success, which could help improve understanding of how to best serve those released from prison. Individuals released from prison face a number of significant barriers, such as returning to communities without adequate employment opportunities, or lacking access to mental health counseling, among others — and better measures could enhance our understanding of which community and policy factors make post-release success more or less likely.

May 5, 2022 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Tuesday, April 26, 2022

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2021"

The US Sentencing Commission, despite the persistent lack of a quorum, continues churn out federal sentencing data and helpful reports about that data.  This week brings its regular annual review of federal criminal case data, released under the title "Overview of Federal Criminal Cases, Fiscal Year 2021."  The full 32 page report is available at this link, and the Commission describes and summarizes the report on this webpage in this way:

Summary

The United States Sentencing Commission received information on 57,377 federal criminal cases in which the offender was sentenced in fiscal year 2021.  Among these cases, 57,287 involved an individual offender and 90 involved a corporation or other “organizational” offender.  The Commission also received information on 4,680 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2021 reveal the following:

  • The 57,287 individual original cases reported to the Commission in fiscal year 2021 represent a decrease of 7,278 (11.3%) cases from fiscal year 2020, and the lowest number of cases since fiscal year 1999.  The number of offenders sentenced in the federal courts reached a peak in fiscal year 20114 and the number of cases reported in fiscal year 2021 was 33.5 percent below that level.
    • Despite the decrease in overall caseload, sizeable increases were reported in drug trafficking, firearms, sex abuse, child pornography and money laundering cases.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 83.1% of all cases reported to the Commission.
  • Drug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3% of the total caseload.
    • Drug possession cases continued a five-year downward trend, decreasing 29.6 percent from fiscal year 2020, while the number of drug trafficking cases rose 7.4 percent after reaching a five-year low in 2020.
    • Two-thirds (67.7%) of drug trafficking offenders were convicted of an offense carrying a mandatory minimum penalty.
    • Methamphetamine remained the most prevalent drug type. The 8,494 methamphetamine cases accounted for 48.0 percent of all drug crimes. The proportion of methamphetamine cases has increased steadily since fiscal year 2017, when those cases accounted for 36.6 percent of all drug cases.
    • The number of fentanyl cases increased 45.2 percent from the year before and now constitute the fourth most numerous drug type. In contrast, the proportion of the drug caseload involving heroin and marijuana has steadily decreased over the last five years.

April 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, 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 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Thursday, March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

Wednesday, March 16, 2022

US Sentencing Commission publishes 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

I received news via email today that the US Sentencing Commission has now published its 2021 Annual Report and Sourcebook of Federal Sentencing Statistics. Here are the links and highlights that appeared in the USSC email:

FY21 Fast Facts

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.  
  • Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload. 
  • Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20. 
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).
    • In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.
  • 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual). 

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY21.

  • Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.
  • The Commission published new findings from its largest recidivism study yet—combining Commission and FBI data to study more than 32,000 federal offenders over an 8-year follow-up period.
    • The Commission has now released reports on firearms, drug trafficking, and violent offenders with more reports forthcoming.
  • The Commission also continued to research specific issues of ongoing congressional concern and deliberation—releasing a report on the emerging problem of fentanyl and fentanyl analogues, and two reports updating its 2012 report to Congress on child pornography offenses.
  • In late September 2021, the Commission released the Judiciary Sentencing INformation (JSIN) tool—an online sentencing data resource developed for judges but made available to the public at large. The platform provides quick and easy online access to sentencing data for similarly-situated defendants, including the types of sentences imposed and average and median sentences.
  • In FY21, the Commission conducted 115 virtual training sessions and more than 13,000 individuals attended live, online, or on-demand prerecorded training sessions—a three-fold increase over the number of trainees in a typical year.

March 16, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 15, 2022

New Sentencing Project report details scope of youth confinement

This new report from The Sentencing Project, titled "Too Many Locked Doors" and authored by Josh Rovner, documents the "wide and deep footprint of youth incarceration." Here is the start of its Executive SUmmary:

The United States incarcerates an alarming number of children and adolescents every year.  Disproportionately, they are youth of color.

Given the short- and long-term damages stemming from youth out of home placement, it is vital to understand its true scope. In 2019, there were more than 240,000 instances of a young person detained, committed, or both in the juvenile justice system.  However, youth incarceration is typically measured via a one-day count taken in late October.

This metric vastly understates its footprint: at least 80% of incarcerated youth are excluded from the one-day count.

This under-count is most prevalent for detained youth, all of whom have been arrested but have yet to face a court hearing. The following are examples of the systemic under-representation of detained youth in the one-day count:

• Thirty-one youths charged with drug offenses are detained for each one measured in the one-day count.

• Twenty-five youths charged with public order offenses are detained for each one measured in the one-day count.

• Seventeen youths charged with property offenses are detained for each one measured in the one-day count.

• Eleven youths charged with person offenses are detained for each one measured in the one-day count.

The variances in commitment are smaller but still noteworthy: more than three youth are committed each calendar year for each youth appearing in the one-day count.

The decade-long drop in detention and commitment masks how common detention remains for youth in conflict with the law. Hundreds of thousands of youth are referred to juvenile courts annually; roughly one-quarter of the time, they are detained.  That proportion has crept upward over a decade in which arrests have declined dramatically.

Data on youth detentions and commitment reveal sharp racial and ethnic disparities. Youth of color encounter police more often than their white peers and are disproportionately arrested despite modest differences in behavior that cannot explain the extent of arrest disparities.  Disparities in incarceration start with arrests but grow at each point of contact along the justice system continuum. In roughly one-quarter of delinquency cases throughout the decade, a youth was detained pre-adjudication. When youth of color are arrested, they are more likely to be detained than their white peers.

March 15, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 14, 2022

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2022"

Wholepie22_twittercard_800x418Many folks like calling March 14 "Pi Day," and for sentencing fans today is especially worth celebrating because the amazing folks at the Prison Policy Initiative have today posted their latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report. "Mass Incarceration: The Whole Pie 2022" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in one image than just about any other single resource.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral pie and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 14, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 10, 2022

Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses

In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:

Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities.  Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent).  Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.

In addition, many people were punished more harshly for wanting to exercise their constitutional rights.  As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”

When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right.  Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes.... 

Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period.  For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.

How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law.  That district also has some of the harshest sentencing outcomes in the country.

I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein.  As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.

Prior related post:

March 10, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (12)

Thursday, February 17, 2022

"Criminal Violations"

The title of this post is the title of this notable new article authored by Jacob Schuman and now available via SSRN. Here is its abstract:

Violations of community supervision are major drivers of incarceration.  Four million people are on probation, parole, or supervised release, and one-third of them will eventually be found in violation, sending 350,000 people to prison each year.  To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations” like missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes.  Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal caselaw, I make three novel observations.  First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for two-thirds of the total prison time imposed. Second, while technical violations allow the government to punish non-criminal behavior, criminal violations give the government an additional justification for penalizing criminal conduct and an easier alternative to criminal prosecution.  Third, the immigration crime of illegal reentry is the basis for as many as one-third of all felony violations, revealing that supervised release is not just a program of surveillance and support, but also a tool of immigration enforcement.

After describing these observations, I critique the law by arguing that revocation for criminal violations inflicts unfair double punishment and erodes constitutional rights. Revoking supervised release for criminal violations triggers an exception to the ordinary rules of prosecution, which federal law has generalized into a standard practice of government.  When defendants on supervised release commit new crimes, prosecution without revocation is a better and fairer way to punish them.

February 17, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, February 15, 2022

New Pew report spotlights "Drug Arrests Stayed High Even as Imprisonment Fell From 2009 to 2019"

Drug arrests Fig-1The quoted part of the title of this post is the title of this awesome new "issue brief" from the folks at Pew.  The full document merits close and repeated review, because there are stories both good and bad about this effective (pre-pandemic) accounting of the war on drugs. Here is part of the overview:

Fifty years ago, President Richard Nixon declared drug abuse “public enemy No. 1,” and Congress passed legislation that sought to expand treatment and research. However, at the same time, intensified enforcement launched what became known as the “War on Drugs.” The harsher penalties led to a 1,216% increase in the state prison population for drug offenses, from 19,000 to 250,000 between 1980 and 2008.  And although prison populations have since declined, the number of people incarcerated for drug offenses remains substantially larger than in 1980 — more than 171,000 in 2019 — and drug misuse and its harms have continued to grow.  Prior research has found that no relationship exists between state drug imprisonment rates and drug use or drug overdose deaths and that, from 2009 to 2019, past-year illicit drug use among Americans 12 or older increased from 15% to nearly 21% and the overdose death rate more than tripled.

To better identify and understand recent changes in and effects of the use of the criminal legal system to address drug problems, The Pew Charitable Trusts analyzed publicly available national data on drug arrests and imprisonment, drug treatment, and harm from drug misuse from 2009 through 2019 — the most recent decade for which data is available. The study found divergent enforcement trends—high rates of arrest but substantially reduced incarceration — coupled with a lack of treatment options and high mortality rates among people with illicit drug dependence.

  • Drug possession arrests held steady at more than a million a year, in stark contrast with a large reduction in overall arrests, which dropped 29%.

  • Only 1 in 13 people who were arrested and had a drug dependency received treatment while in jail or prison.

  • Racial disparities in drug enforcement declined. Arrests of Black people for drug offenses fell by 37%, more than three times the drop among White people.

  • Increased arrests of White individuals for possession of methamphetamine offset declines in marijuana arrests and drove the reduction in racial disparities.

  • The numbers of people admitted to and held in state prisons for drug offenses both fell by about a third, accounting for 61% of the overall reduction in prison populations and 38% of the total decline in admissions.

  • The decline in the number of Black people incarcerated for drug offenses made up 26% of the decrease in prison admissions and 48% of the drop in the prison population.

  • Drug- and alcohol-related mortality rates increased fivefold in prisons and threefold in jails despite the decreases in the number of people in prison for drug offenses.

These trends indicate both an ongoing reliance on the criminal legal system to address drug misuse and that this strategy is costly and ineffective.  Meaningful reductions in total drug arrests and drug-related deaths may not be achieved without shifting to a public health response that prioritizes evidence-based treatment approaches.

February 15, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Scope of Imprisonment | Permalink | Comments (9)

Declines in 2021 leaves US death row populations at lowest level in three decades

Thanks to this posting at the Death Penalty Information Center, I just saw that the NAACP Legal Defense and Educational Fund has released its Fall 2021 edition of Death Row USA. The full LDF report runs 61 pages, but the DPIC summary provides these notable highlights:

In its Fall 2021 edition of Death Row USA (DRUSA), released February 7, 2022, LDF reported that the number of people on state, federal, or military death rows or facing possible capital resentencing across the United States had fallen to 2,455 as of October 1, 2021, down by 98 from LDF’s Fall 2020 report.  It is the lowest total since January 1991 when 2,412 people were on U.S. death rows or faced jeopardy of being resentenced to death.  Death row, which peaked at 3,717 in the July 2001 DRUSA report, has declined by 34.0% since then.

LDF found that the capital convictions or death sentences of 219 people listed in its report have been reversed, leaving roughly one in eleven cases awaiting retrial or resentencing or with grants of relief still subject to prosecutorial appeal.  Excluding those individuals, the number people in the United States facing active death sentences fell to 2,236 from its from total of 2,326 in October 2020.

LDF reported that 849 people, or 34.6% of those on death row or facing capital resentencing as of October 1, 2021 were in states with moratoria on executions.  Including those in other states whose death sentences have been reversed, LDF calculated that there were 1,034 currently unenforceable death sentences, comprising 41.4% of all active cases in which a death sentence has been imposed.  That left 1,438 death-row prisoners with currently enforceable death sentences.

California’s death row declined to 695 prisoners but remained more than double the size of death row in any other state. It was followed by Florida (333), Texas (198), and Alabama (170).  Nationwide, 42.4% of death-row prisoners were white, 41.2% were Black, 13.6% Latinx, 1.9% Asian, and 1.0% were Native American. Among states with at least 10 prisoners on death row, Texas (72.2%), Louisiana (72.3%), California (67.2%), Nebraska (66.7%), and Pennsylvania (61.5%) were the states with the highest percentage of individuals of color on death row. Two percent of all death-row prisoners are women.

February 15, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Thursday, February 10, 2022

US Sentencing Commission releases big new report on "Recidivism of Federal Violent Offenders Released in 2010"

As I keep noting in recent years, it is has been great to see the US Sentencing Commission continuing to produce a lot of useful data reports even as its policy work is necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example released today is this 116-page new report titled "Recidivism of Federal Violent Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted here:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,883 federal violent offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for federal violent offenders released in 2010 to non-violent offenders in the study group....

Key Findings

  • This study demonstrated substantially greater recidivism among violent federal offenders compared to non-violent federal offenders.
    • The recidivism rates of violent and non-violent offenders released in 2005 and 2010 remained unchanged despite two intervening major developments in the federal criminal justice system — the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
    • This finding is consistent with other Commission reports demonstrating higher recidivism among violent offenders...
  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over an eight-year follow-up period, nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, compared to more than one-third (38.4%) of non-violent offenders.
  • Violent offenders recidivated more quickly than non-violent offenders.  The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders.
  • Among offenders who were rearrested, violent offenders were rearrested for a violent offense at a higher rate than non-violent offenders, 38.9 percent compared to 22.0 percent.
    • Assault was the most common type of rearrest for both violent and non-violent offenders, but a larger proportion of violent offenders (24.9%) than non-violent offenders (15.4%) were rearrested for assault.
  • Age at release is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates decrease steadily with each age group for both groups of offenders.  However, violent offenders had higher rearrest rates than non-violent offenders in each age group.  Among offenders aged 60 and older, the oldest group of offenders studied, 25.1 percent of violent offenders were rearrested compared to 11.5 percent of non-violent offenders.
  • Criminal History Category (CHC) is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates increase steadily with each CHC for both groups of offenders. However, violent offenders had higher rearrest rates than non-violent offenders in every CHC. Analyzed separately, violent instant offenders (59.9%) and violent prior offenders (64.8%) were rearrested at a higher rate than non-violent offenders (38.4%)....
  • The current recidivism findings for violent and non-violent offenders released in 2010 replicate the Commission’s findings for offenders released in 2005. Nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, the same rate for violent offenders released in 2005 (63.8%). More than one-third (38.4%) of non-violent offenders released in 2010 were rearrested, a comparable rate to non-violent offenders released in 2005 (39.8%).

February 10, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (4)

Monday, December 20, 2021

Despite lacking a quorum, US Sentencing Commission still has an interesting and productive year

Regular readers are likely tired of hearing me complain about the US Sentencing Commission being crippled by a lack of Commissioners, but I hope some have noted my eagerness to compliment the "short-staffed" USSC for all the data and reports produced and promulgated through 2021.  This morning I received an email from the Commission providing a "year in review," and I was struck again at what the Commission has achieved this past year even absent a quorum.  I cannot find this email in a web form, so I will here just reproduce some highlights (with links from the USSC and to the USSC website):

1. Preliminary FY21 data reveal a continued decline in sentencings and a historic shift in the makeup of the federal drug caseload. Learn more ...
2. With the advent of COVID-19, tens of thousands of offenders sought compassionate release. The Commission tracked and reported this data throughout 2021. Learn more

In early 2022, look for a comprehensive new research report on compassionate release providing even greater analysis regarding the courts’ reasoning for granting or denying motions for compassionate release....

6. The Commission expanded its catalog of interactive tools designed for those working in the federal criminal justice system.
IDA Expansion: Interactive Data Analyzer feedback has been very positive and users continue to #AskIDA for even more data. The Commission has listened to your feedback. IDA is now updated with enhanced filtering capabilities—including a brand new data filter for career offenders. Learn more

JSIN Development: The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind. The platform provides quick and easy online access to average prison length and other sentencing data for similarly-situated defendants. Learn more

December 20, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, December 19, 2021

Vera Institute updates its Incarceration Trends website

As discussed in this press release, titled "Vera Institute of Justice Unveils Updated Incarceration Trends Website," the Vera Institute has updated this cool website. Here are the basics as described in the press release:

The Vera Institute of Justice [has] a new, updated version of its Incarceration Trends website, which now includes analysis of more than five decades of local jail and state prison data at the national, state, and county levels.  The updated site brings many of the data points current to spring 2021 and represents the most comprehensive look to date at the growth of mass incarceration across states, counties, and urban-to-rural geographies....

The nation’s biggest cities once had the highest rates of incarceration, but over the past several decades, jail incarceration and state prison admissions have declined in major metro areas as they rose precipitously in smaller cities and rural communities.  Today in the United States, approximately two out of three people in local jails have not been convicted of a crime — many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those who can’t pay child support or fines and fees.  The updated analysis presented in Incarceration Trends highlights that the disproportionate criminalization and incarceration of Black people and other people of color is also most pronounced in rural counties, as is the rise of women’s incarceration.

The newly visualized data also features the rebound in jail incarceration after an unprecedented 14 percent drop in incarceration in the first half of 2020 (bringing the total incarcerated population from 2.1 million to 1.8 million people) in response to the spread of COVID-19.  As of spring 2021, state prison decarceration had stalled and jail populations continued to trend upward.

Incarceration Trends offers insight on national-, state-, and county-level pages, enabling users to compare county-level data to state and national trends.  The website includes:

  • analysis of the race, ethnicity, and gender of people in the nation’s jails and prisons;

  • visualizations of state incarceration trends across major metros, smaller cities, suburbs, and rural communities;

  • rankings of all of the counties in a given state by the incarceration rate and growth of incarceration;

  • a visualization of each county’s jail population, representing the most recently available data about what proportion is held pretrial, sentenced, and held on behalf of other authorities, including state departments of corrections and federal agencies;

  • the ability to toggle between the average number of people held in a jail on any day and the rate of incarceration, accounting for resident population changes; and

  • data on regional jail systems that serve multiple counties.

The new Incarceration Trends website shows both the significant increase in jail incarceration across the urban to rural spectrum since 1970 and the more recent divergence in incarceration trends, including during the COVID-19 pandemic. Nationally, the rate at which people are incarcerated in local jails declined 26 percent between late 2019 and mid-2020. However, jail incarceration had rebounded sharply by spring 2021.

December 19, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

DPIC releases year-end report emphasizing "continuing decline of death penalty" in 2021

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2021: Year End Report; Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty." Here is the starts of the report's introduction, with lots of data and details following thereafter:

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States.  A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth.  As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice.  On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder.  Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows.  With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3).  An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences.  As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972.  The eleven executions carried out during the year were the fewest since 1988.  The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions.  Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

December 16, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (2)

Wednesday, December 15, 2021

New BJS report documents big decrease in prison admissions drove 15% imprisonment rate decline in 2020

The Bureau of Justice Statistics has released its latest detailed accounting of US prison populations in this big report titled "Prisoners in 2020 – Statistical Tables."  The BJS data capture realities at yearend 2020, and thus reflects lots (but not all) COVID-era developments. Here is part of the start of the document, along with some of its "highlights":

In 2020, the number of persons held in state or federal prisons in the United States declined 15%, from 1,430,200 at yearend 2019 to 1,215,800 at yearend 2020. Only Alaska showed an increase (2%) in its prison population, while other jurisdictions showed declines of 7% to 31%.  The number of persons sentenced to more than 1 year in state or federal prison decreased from 1,379,800 in 2019 to 1,182,200 in 2020. Te combined state and federal imprisonment rate for 2020 (358 per 100,000 U.S. residents) represented a decrease of 15% from 2019 (419 per 100,000 U.S. residents) and a decrease of 28% from 2010 (500 per 100,000 U.S. residents).

The COVID-19 pandemic was largely responsible for the decline in prisoners under state and federal correctional authority.  Courts significantly altered operations for part or all of 2020, leading to delays in trials and/or sentencing of persons, and this was refected in the 40% decrease in admissions to state and federal prison from 2019.  While the number of releases also declined during 2020, releases occurred at a slower rate (10%) than the decrease in admissions. Although deaths represented 1% of the total releases from prison in 2020, the number prisoners that died under the jurisdiction of state or federal correctional authorities in 2020 (6,100 prisoners) increased 46% from 2019 (4,200).

From 2019 to 2020, the decline in the number of females sentenced to more than 1 year in prison (down 22%) outpaced the decrease in sentenced male prisoners (down 14%).  The imprisonment rates for U.S. residents in all racial or ethnic categories decreased by 12% to 16% from 2019 to 2020 and by at least 25% from 2010 to 2020.  The imprisonment rate for black U.S. residents decreased 37%, from 1,489 per 100,000 in 2010 to 938 per 100,000 in 2020.

Highlights

  • At yearend 2020, the number of prisoners under state or federal jurisdiction had decreased by 214,300 (down 15%) from 2019 and by 399,700 (down 25%) from 2009, the year the number of prisoners in the United States peaked.
  • Nine states showed decreases in the number of persons in prison of at least 20% from 2019 to 2020.
  • The prison populations of California, Texas, and the Federal Bureau of Prisons each declined by more than 22,500 from 2019 to 2020, accounting for 33% of the total prison population decrease.
  • In 2020, the imprisonment rate was 358 per 100,000 U.S. residents, the lowest since 1992.
  • From 2010 to 2020, the sentenced imprisonment rate for U.S. residents fell 37% among blacks; 32% among Hispanics; 32% among Asians, Native Hawaiians, and Other Pacifc Islanders; 26% among whites; and 25% among American Indians and Alaska Natives.
  • The number of admissions to federal prison (down 19,000) and to state prison (down 211,800) both declined by 40% from 2019 to 2020.
  • Releases from federal and state prisons decreased during 2020 (down 58,400 or almost 10% from 2019), but at a lower rate than the decrease in admissions.

I find it fascinating and telling that our nation actually did not release more people from prison during an historic pandemic, but it did have a harder time continuing to send a massive number of new people to prison. I am thus tempted to joke that, like lots of other segments of our society, America's mass incarceration system has also had "supply chain" issues that has impacted its usual functioning. Whether these patterns have continued into 2021 and beyond as this pandemic lingers on will be worth watching closely.

December 15, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 10, 2021

"Bureau of Justice Statistics releases "Capital Punishment, 2020 – Statistical Tables"

Today the Justice Department's Bureau of Justice Statistics has released this new report with data on the administration of capital punishment in the United States through the end of 2020. (As I have noted before, though BJS provides great data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.)

This new BJS report provides notable and clear statistical snapshots about the death penalty in the US, and the document starts with this introduction and these "highlights" on the first two pages of a 26-page document:

At yearend 2020, a total of 28 states and the Federal Bureau of Prisons (BOP) held 2,469 prisoners under sentence of death, which was 94 (4%) fewer than at yearend 2019.  During 2020, the number of prisoners under sentence of death declined for the twentieth consecutive year.  California (28%), Florida (14%), and Texas (8%) held half of the prisoners under sentence of death in the United States on December 31, 2020.  The BOP held 51 prisoners under sentence of death at yearend.

Five states and the BOP executed a total of 17 prisoners in 2020.  The BOP executed 10 prisoners, which accounted for 59% of the executions carried out in 2020.

This report presents statistics on persons who were under sentence of death in 2020, state and federal death penalty laws in 2020, and historical trends in executions.  At yearend 2020, a total of 31 states and the federal government authorized the death penalty.

  • Colorado repealed the death penalty provision of its first-degree murder statute in July 2020, and the governor commuted the death sentences of the three prisoners under previously imposed sentences of death to life without the possibility of parole. ƒ
  • Seven states received a total of 14 prisoners under sentence of death in 2020, the smallest annual number reported since the U.S. Supreme Court invalidated capital punishment statutes in several states in 1972 (see Furman v. Georgia, 408 U.S. 238 (1972)).
  • ƒNineteen states removed a total of 91 prisoners from under sentence of death by means other than execution in 2020.
  • ƒDuring 2020, 17 states and the BOP reported a decrease in the number of prisoners held under sentence of death, 16 states reported no change, and no states reported an increase in the number of prisoners held under sentence of death.
  • ƒThe largest declines in the number of prisoners under sentence of death in 2020 occurred in California (down 24 prisoners) and Pennsylvania (down 14).
  • ƒThe majority (98%) of prisoners under sentence of death were male.
  • ƒAt yearend 2020, about 56% of prisoners under sentence of death were white and 41% were black.
  • Among prisoners under sentence of death at yearend 2020 with a known ethnicity, 15% were Hispanic. ƒ
  • Prisoners under sentence of death on December 31, 2020 had been on death row for an average of 19.4 years.
  • ƒPrisoners executed during 2020 had been on death row for an average of 18.9 years.

December 10, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Wednesday, December 08, 2021

US Sentencing Commission releases FY 2021 fourth quarter sentencing data showing growth in cases and in average sentence severity

US Sentencing Commission yesterday published here its latest quarterly data report which is described as a "4th Quarter Release, Preliminary Fiscal Year 2021 Data Through September 30, 2021." These new data provide another official accounting of how COVID realities appear to be continuing to reduce the usual total number of federal sentences imposed, though in this latest quarter we are seeing a return almost to pre-pandemic norms for most offense categories other than immigration cases.

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000. But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter here reported, running from July 1 to September 30, 2021, it appears that more than 15,000 cases were sentenced in federal court.  Figure 2 also shows that, relative to pre-pandemic trends, the only major caseload decline now is in the total number of immigration cases sentenced while the other big federal case categories — Drug Trafficking, Firearms and Economic Offenses — now have the total number of cases sentenced in recent quarters not off that much from recent historical norms.

Consistent with what I have noted in prior post about pandemic era USSC data, these data continue to show a notable jump in the percentage of below-guideline variances granted in the last five quarters (as detailed in Figures 3 and 4).  But I suspect these data may reflect the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically rather than significantly different behaviors by sentencing judges.  And, notably, Figure 5 in this data run reveals that the "Average Guideline Minimum" as well as the "Average Sentence" were higher in this last quarter than in recent history, with a particularly notable uptick in these measures of average sentence severity over the last two quarters.

A few prior recent related post:

December 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Tuesday, November 16, 2021

"The Secret Success of Federal Probationers"

The title of this post is the headline of this important recent commentary authored by Jacob Schuman over at The Crime Report.  I recommend the full piece, and here are excerpts (with links from the original):

Several times a year, the United States Sentencing Commission (USSC) publishes research reports on the federal criminal justice system.  These reports are part of the Commission’s statutory mandate and provide vital information and analysis to attorneys, scholars and the public.  Over the past 10 years alone, the Supreme Court has cited Commission reports in more than half-a-dozen cases.

Unfortunately, the Commission’s July 2020 report on Federal Probation and Supervised Release Violations contains a major mistake that greatly overstates the dangerousness of federal probationers.  To correct that mistake, I used the Commission’s data to re-run the analysis and found that probationers were more successful than previously reported.

The Commission claimed that approximately one-in-five defendants violated their supervision every year; yet the rate for federal probationers was just one-in-20.  Similarly, the Commission found that nearly half of supervision violators engaged in new felony conduct, but the figure for probation violations was only one-third.

Acknowledging the success of federal probationers is especially important, given current efforts to reduce incarceration and stem COVID-19 transmission by allowing defendants to serve terms of supervision in the community.  If judges are led to believe that probationers are more likely to commit violations, then they may be less willing to impose supervision as an alternative to imprisonment.  The Commission’s error thus not only threatens to taint its own research, but also to mislead the courts to the detriment of criminal defendants and the public.

The Commission deserves credit for publishing the Violations report, which marks the “first time” the agency collected and analyzed data on revocation hearings.  The report includes a publicly accessible database of 108,115 hearings in federal district courts between 2013-2017.  In analyzing this database, the Commission combined defendants sentenced to probation with those sentenced to supervised release, describing them together as “offenders sentenced to supervision.” That was a significant blunder....

Because probation is limited to low-level defendants, whereas supervised release can be imposed in all cases, probationers are likely to have been convicted of less serious crimes and to have shorter criminal records than people on supervised release.  And since criminal history is a strong predictor of recidivism, it stands to reason that this difference may also affect the violation rates of each group of offenders....

The Violations report is roughly accurate when it comes to violations of supervised release, which dominate the database.  In 2019, there were 112,500 people on supervised release, compared to just 14,500 on probation.  Similarly, the Commission found that 95 percent of violations were by people on supervised release, compared to just 5 percent on probation.  The Commission failed to recognize, however, that because the data is overwhelmingly violations of supervised release, its analysis would reflect the behavior of those defendants, while obscuring the outcomes for federal probationers....

I draw three conclusions from these results.  First, judges should not let the findings in the Violations report deter them from imposing probation instead of imprisonment on worthy candidates.  While the report suggests a ~20 percent annual violation rate, of which approximately half were new felonies, the data for federal probationers is more promising.  Federal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation.  The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers.

Second, Congress should consider expanding probation eligibility.  While the low violation rates for federal probationers in part reflect the limited availability of the sentence, their success also suggests that probation might be expanded without serious risk to the public.  Federal judges have proven their ability to select the strongest candidates for supervision over incarceration, and Congress should give them the discretion to do so in more cases.  Revocation always remains a deterrent to violations – in fact, probationers received harsher sentences than reported by the Commission, perhaps to compensate for the leniency they were originally granted.

Finally, the Sentencing Commission should avoid repeating the same mistake in future research.  Probation and supervised release are not just conceptually distinct sentences, but also as a result of their legal differences apply to different populations in ways that impact empirical analysis.  If the Commission does not separate these populations when it studies federal sentencing data, then the much larger number of defendants on supervised release will overwhelm and conceal the outcomes for defendants on probation.

While I commend the Commission for casting light into this murky corner of the federal criminal justice system, it is important to correct the record on behalf of federal probationers and ensure their success does not remain a secret.

November 16, 2021 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (3)

Sunday, November 14, 2021

New US Sentencing Commission podcast discusses new Judiciary Sentencing INformation (JSIN) Tool

In this post two monts ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges.  Though I have flagged in prior posts a few concerns about the construction and possible use of the Judiciary Sentencing INformation (JSIN) data tool in federal sentencing (see posts linked below), I still view JSIN as quite interesting and important data work by the USSC. 

The Sentencing Commission, on this webpage introducing JSIN, has provided an FAQ that explains the tool a bit.  But now one can also find on the USSC website this new podcast (called "Commission Chats") featuring a discussion of JSIN.  The short podcast (about 12 minutes) is described this way:

In this special episode, U.S. District Court Judge Charles R. Breyer, Acting Chair of the Commission, and Glenn Schmitt, Research and Data Director, discuss the origin and particulars of JSIN, the Commission's new online data tool developed specifically for sentencing judges. 

Though the podcast does not go much beyond a description of the basic elements of JSIN, it still makes for an interesting listen and Judge Breyer gives an explanation for some of the data choices reflected in JSIN.

Prior related JSIN posts:

November 14, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, November 12, 2021

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

November 12, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, October 28, 2021

"Federal Offenders Who Served in the Armed Forces"

Cover_armed-forcesThe title of this post is the title of this fascinating new report from the US Sentencing Commission released today.  This USSC webpage provides this overview and key findings:

The Department of Veterans Affairs estimates that there are more than 19 million Americans who are veterans. Over 10,000 veteran offenders were in the custody of the Federal Bureau of Prisons at the end of 2019, accounting for almost six percent of all BOP inmates.

This report provides an analysis of the relatively small number of veterans each year who are sentenced for a federal felony or Class A misdemeanor offense, most often committed well after they left military service.  In particular, the report examines federal offenders with prior military service who were sentenced in fiscal year 2019, the crimes they committed, and an assessment of whether that prior service was given special consideration at sentencing.

Key Findings

  • In fiscal year 2019, 4.4 percent of all U.S. citizens sentenced in the Federal courts for a felony or Class A misdemeanor had served in the military.  For these offenders, the average length of time between separation from the military and the sentence for the federal offense was 23 years.

  • The most common crime type committed by both veteran offenders and citizen offenders overall was drug trafficking (25.0% and 37.6%, respectively).  Veteran offenders, however, committed child pornography offenses more than four times as often as citizen offenders overall, 11.6 percent compared to 2.7 percent, and sex abuse offenses more than twice as often, 6.7 percent compared to 2.4 percent.

  • The sentences imposed on veteran offenders and citizen offenders overall were similar in terms of type of sentence imposed and average sentence imposed.  For veteran offenders, 79.2 percent received a sentence of imprisonment compared to 83.9 percent of all citizen offenders, and the average sentence for veteran offenders was 64 months compared to 62 months for all citizen offenders.

  • Although veteran offenders were more likely to be sentenced below the applicable guideline range (38.9% received a downward variance compared to 31.8% of all citizen offenders), military service does not appear to have a significant influence on the sentences imposed.  The court specifically cited an offender’s military service as a reason for the sentence imposed in only 15.0 percent of cases involving veteran offenders.

  • When the court did cite an offender’s military service as a reason for the sentence, it was almost always for service that the military had characterized as honorable.

  • Only two other offender characteristics were correlated with sentences where a court cited the offender’s military service as a reason.  Two-thirds (66.9%) of the offenders whose military service was cited by the court indicated that they had some history of mental health problems, compared to 51.1 percent for veteran offenders generally.  Also, more than half (54.8%) of the offenders whose service was cited by the court had served in a combat zone, compared to 22.6 percent for all veteran offenders.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

  • investigations by U.S. attorneys
  • prosecutions and declinations
  • convictions and acquittals
  • sentencing
  • pretrial release
  • detention
  • appeals
  • probation and parole
  • prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Friday, October 15, 2021

"Sentencing Commission Data Tool Is Deeply Flawed"

The title of this post is the headline of this new Law360 commentary by Michael Yeager which provides an important and critical discussion of the US Sentencing Commission's new JSIN sentencing tool.  This piece develops and details some of the concerns flagged here when JSIN was first released, and here are excerpts from the piece:

In some respects, [JSIN] an improvement from the Sentencing Commission's annual reports and past data tools. For example, past annual reports have provided an average of all fraud sentences; that method lumps all frauds together, whether they involve $1 million or $100 million.

JSIN is more focused than that and thus closer to the guidelines calculation that judges must actually perform at sentencing. But the most important numbers that JSIN reports — the average and median sentences for a particular position on the sentencing table — are inflated by a series of choices to exclude large chunks of the commission's own dataset.

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Prior related JSIN posts:

October 15, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, October 13, 2021

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

October 13, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Tuesday, October 12, 2021

What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release?

In this post two weeks ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges. The Judiciary Sentencing INformation (JSIN) data tool is described this way by the USSC:

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....
JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.

I mentioned in my prior post that JSIN seemed relatively easy to navigate and quite useful, but I also expressed concern that the JSIN tool was possibly constructed with built-in and systemic "severity biases" due to certain data choices.  I keep hoping some others might soon write about JSIN and the role it could or should play in federal sentencings, but to date I have seen no press coverage or any other commentary about JSIN.  I have heard some positive review from a few federal district judges, though that may just reflect the tendency of all thoughtful sentencing judges to find any and all additional sentencing data to be helpful to their work.

Given that well over 1000 persons are sentenced ever average week in the federal sentencing system, I am now wondering if the USSC or anyone else is collecting any data on whether and how JSIN is being used in current federal sentencings.  Are any probation offices including JSIN data in presentencing reports?  Are federal prosecutors and defense attorneys using JSIN data in sentencing briefs and arguments?  Are federal sentencing judges referencing JSIN data in their sentencing decision-making?

October 12, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

September 30, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Recidivism of Federal Offenders Released in 2010"

Cover_2021-recidivism-overviewAs I have said repeatedly over the last three years, it is has been great to see that the US Sentencing Commission can continue to do a lot of needed and important data analysis even as its policy work it necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example was released today in this form of this big new report titled "Recidivism of Federal Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted below:

Overview

This report is the first in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI).  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for offenders released in 2010 to federal offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders. The final study group of 32,135 offenders satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The recidivism rate remained unchanged for federal offenders released in 2010 compared to offenders released in 2005 despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision....
  • For offenders who were rearrested, the median time to arrest was 19 months. The largest proportion (18.2%) of offenders were rearrested for the first time during the first year following release. In each subsequent year, fewer offenders were rearrested for the first time than in previous years. Most offenders in the study were rearrested prior to the end of supervision terms....
  • Assault was the most common (20.7%) offense at rearrest.  The second most common offense was drug trafficking (11.3%), followed by: larceny (8.7%), probation, parole, and supervision violations (8.1%), and administration of justice offenses (7.5%).
  • Combined, violent offenses comprised approximately one-third of rearrests; 31.4 percent of offenders were rearrested for assault (20.7%), robbery (4.5%), murder (2.3%), other violent offense (2.3%), or sexual assault (1.6%).
  • Similar to findings in its previous studies, the Commission found age and Criminal History Category (CHC) were strongly associated with rearrests....  Combined, the impact of CHC and age on recidivism was even stronger.  During the eight-year follow-up period, 100 percent of offenders who were younger than 21 at the time of release and in CHC IV, V, and VI (the most serious CHCs) were rearrested.  In contrast, only 9.4 percent of offenders in CHC I (the least serious CHC) who were aged 60 and older at release were rearrested.
  • Offenders sentenced for firearms and robbery offenses had the highest rearrest rates during the eight-year follow-up period, with 70.6 percent and 63.2 percent, respectively.  In contrast, offenders sentenced for fraud, theft, or embezzlement had the lowest rearrest rate (35.5%).

September 30, 2021 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Tuesday, September 28, 2021

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, September 16, 2021

US Sentencing Commission releases FY 2021 third quarter sentencing data showing COVID's continued (but reduced) impact on federal sentencings

I just noticed that the US Sentencing Commission this week published here its latest quarterly data report which is described as a "3rd Quarter Release, Preliminary Fiscal Year 2021 Data, Through June 30, 2021."  These new data provide another official accounting of how COVID challenges continued to reduce the usual total number of federal sentences imposed, though in the latest quarter we are seeing a return almost to pre-pandemic norms. 

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000.  But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter report, which ran from April 1 to June 30, 2021, about 15,000 cases were sentenced in federal court.  Figure 2 also shows that major declines in the total number of immigration cases sentenced are what primarily accounts for the decrease in overall federal cases sentenced.  For the other big federal case categories -- Drug Trafficking, Firearms and Economic Offenses -- the total number of cases sentenced in recent quarters are not off that much from recent historical norms.

Consistent with what I noted in this prior post about pandemic era USSC data, these data show an interesting jump in the percentage of below-guideline variances granted in the last four quarters (as detailed in Figures 3 and 4).  But I remain unsure if these data reflect significantly different behaviors by sentencing judges over the last year or is just primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.

Prior recent related post:

September 16, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Wednesday, September 01, 2021

"More Community, Less Confinement: A State-by-State Analysis on How Supervision Violations Impacted Prison Populations During the Pandemic"

The title of this post is the title of a great new analysis by the Council of State Governments Justice Center looking at prison populations as impacted by the pandemic and reactions thereto.  This press release provides this overview (and helpful links at the end):

State prison populations shrank by an unprecedented 14 percent in 2020 due to changes spurred by the COVID-19 pandemic, according to new data released today by The Council of State Governments (CSG) Justice Center.  The study, More Community, Less Confinement, was conducted in partnership with the Correctional Leaders Association (CLA) and with support from Arnold Ventures.
 
Despite the decline in total prison population, supervision violations still drive a substantial share of new admissions — accounting for 42 percent of prison admissions in 2020. This included roughly 98,000 people admitted to prison for technical violations, such as missed curfews or failed drug tests.  The share of the population in prison for supervision violations was 20 percent in 2020, down slightly from 23 percent in 2018.
 
“As these data underscore, during the COVID-19 pandemic, probation and parole agencies made significant changes to the way they do business. These changes protected the health and safety of people in the justice system, including corrections staff,” said Megan Quattlebaum, director of the CSG Justice Center.  “Now, we have a unique and important opportunity to explore which of these policy changes should be retained to maximize success for people serving on community supervision.  Each of the 98,000 people admitted to prison—not for new crimes, but for violating the conditions of their probation or parole — represents 98,000 opportunities to improve public safety while saving states money. When people on probation and parole succeed, it is a win-win-win for them, their communities, and all taxpayers.”
 
In response to the threat of COVID-19, many parts of the criminal justice system halted operations to reduce in-person contact and prevent the spread of the virus.  The CSG Justice Center surveyed corrections leaders in all 50 states to understand the impact of community supervision on state prison populations. The resulting data span 3 years — from 2018 to 2020 — and uncover how the number of people sent to prison for supervision violations changed during and prior to the pandemic. 
 
While some states released people from prisons early to help reduce spread of the virus, the population decline in state prisons was largely driven by a drop in the number of people being admitted to prisons.  Roughly 200,000 fewer people were admitted to prison in 2020 due to changes in offending behaviors, local law enforcement, community supervision, and court operations....
  
Overall, there were roughly 167,000 fewer people in state prisons in 2020. One-third of the total drop (57,000 people) was due to fewer people sitting in prison for supervision violations. In addition, about 73,000 fewer people entered prison for supervision violations in 2020 — a 30 percent drop in a single year.  The cumulative result over this 3-year data collection effort showed that there were 31 percent fewer people in prison for technical supervision violations and 18 percent fewer people in prison for new offense violations, while all other populations (primarily new court commitments) dropped just 12 percent....
 
Learn more:

September 1, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 30, 2021

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

7ee4529a-2a57-c490-a090-f44255823417I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 
View your state’s dashboard
 
The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

August 30, 2021 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, August 18, 2021

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

August 18, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Monday, August 09, 2021

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

Guest-Posting-ServiceI expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

---------------

This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

  1. Incomplete data
  2. Endogeneity of included regressors
  3. Small numbers of observations per judge
  4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

* * *

In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

August 9, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (14)

Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 22, 2021

BJS releases new reports on "Correctional Populations in the United States, 2019" and "Probation and Parole in the United States, 2019"

Justice Department's Bureau of Justice Statistics always produces terrific reports on national criminal justice realities, though there is necessarily a time lag in the data reported.  But given they ways the COVID pandemic has changed (and not changed) our criminal justice systems, I think it is especially timely that BJS has just released to big new reports on the state of US correctional populations at the end of 2019, just before the pandemic hit.  Via email, I got news and short descriptions of these new BJS reports:

The Department of Justice’s Bureau of Justice Statistics today released two reports that present statistics on adults in the U.S. correctional system. Correctional Populations in the United States, 2019 – Statistical Tables provides data on both incarcerated persons and those on probation or parole, while Probation and Parole in the United States, 2019 focuses on persons under community supervision on probation or parole.

Correctional Populations in the United States, 2019 – Statistical Tables presents statistics on persons supervised by U.S. adult correctional systems at year-end 2019, including those supervised in the community on probation or parole and persons incarcerated in state or federal prison or local jail.  It describes the size and change in the total correctional population from 2009 to 2019.  Findings are based on various BJS data collections, including the Annual Probation Survey, Annual Parole Survey, Annual Survey of Jails, Census of Jails, National Prisoner Statistics program and Survey of Jails in Indian Country.

Probation and Parole in the United States, 2019 presents national data on adult offenders under community supervision on probation or parole in 2019.  It includes characteristics of the population such as sex, race or Hispanic origin, and most serious offense.  The report details how offenders move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2019 Annual Probation Survey and Annual Parole Survey.

July 22, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 15, 2021

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

  • Black Disparities in Youth Incarceration
    • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
    • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
  • Latinx Disparities in Youth Incarceration
    • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
    • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
  • Tribal Disparities in Youth Incarceration
    • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
    • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

July 15, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 08, 2021

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Tuesday, June 29, 2021

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Cover_CP-non-prodDespite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

  • Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
    • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
    • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.
  • Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
    • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
    • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.
  • Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
    • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
    • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.
  • Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
    • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
    • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
    • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.
  • Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
    • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
    • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.
  • Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
    • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
    • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).
  • As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
    • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
    • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
    • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

June 29, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Post-Libby commutation developments, Sex Offender Sentencing | Permalink | Comments (1)

Monday, June 28, 2021

Updating the Buckeye State's progress creating a needed felony sentencing database

In a few posts at the start and end of last year, I flagged the work of some Ohio jurists in advocating for the development of a statewide sentencing database. See :A notable judicial pitch for better sentencing data in the Buckeye State" (from Jan. 2020) and "Making a great case for greater data to improve sentencing decision-making and sentencing systems" (from Dec. 2020).  Since then, work on, and debates over, such a database have picked up steam and also garnered some press attention:

From the Columbus Dispatch, "Can a spreadsheet improve fairness and justice in sentencing in Ohio courts? Some judges say yes"

From the Court News Ohio, "Justice, Judges Stand By Value Of Sentencing Database"

Also from the Court News Ohio, "New Platform Provides Path to Accessible Sentencing Data"

From The Plain Dealer editorial board: "Should Cuyahoga County run a pilot to show a criminal sentencing database can work?"

Here are excerpts from the the Dispatch article, which appears in today's papers, providing an update on the efforts:

Ohio Supreme Court Justice Michael Donnelly is spearheading a project to collect criminal sentencing data in a uniform way across courts.  And Chief Justice Maureen O'Connor is backing it as well.  "I've become convinced that this isn't just a good idea, it's an absolute necessity to deal with the problem of disparate treatment and implicit bias that permeates our sentencing laws," Donnelly said....

The goal is to be able see how similar cases compare county to county, court to court.  It isn't as simple as it sounds.  The courts operate with antiquated information technology systems. There isn't a uniform way that courts collect information.  Ohio has 723 elected judges across 88 counties — some of whom may be worried about what trends the data may show, Donnelly said....

Ohio is making some progress.  The Ohio Sentencing Data Platform project now has a template so courts can collect the same information in the same fields — a crucial early step for building a common database.  

Courts in Allen and Lawrence counties are testing the project and courts in Highland, Lake and Summit counties are scheduled to join in the coming months.  Courts in 11 other counties including Hamilton, Warren, Franklin and Stark are holding meetings about joining.

 The April 2021 issue of the Federal Sentencing Reporter, which is available online here, includes discussions of efforts to build out the Ohio Sentencing Data Platform.

June 28, 2021 in Data on sentencing, Detailed sentencing data, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, June 17, 2021

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

Massive new RAND report provides "Statistical Analysis of Presidential Pardons"

I received an email yesterday from the Bureau of Justice Statistics with a link to this 220+ page report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  The report is so big and intricate that the introduction runs 40 pages with lots of complicated data.  And, disappointingly, it seems the detailed statistical analysis includes data only running through April 2012 (through most of Prez Obama's first term) and so does not include the flush of pardons and commutations granted over the last decade. Still, the report provides a lot of coverage that should be of great interest to those who follow the use of federal clemency powers and possibilities.  Here is a snippet from Chapter 1 of the report that details its coverage:

Chapter 2 presents a model of the deliberative process employed by OPA in evaluating incoming pardon petitions.  Chapter 3 provides descriptive statistics on measures collected during our abstraction of sample petition files.  Chapter 4 reports on the findings from our statistical analysis intended to identify petitioner and petition characteristics most strongly associated with grants of pardon — with a special emphasis on the effects of race and ethnicity on final actions — and also describes the assumptions and techniques utilized for this work.  In Chapter 5 we discuss what these descriptions and findings may reveal about OPA’s pardon petition processing.

June 16, 2021 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 10, 2021

US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report"

I just received an email from the US Sentencing Commission with an alert about new data reports from the USSC.  Any new data from the USSC gets me excited, and I got even more jazzed upon seeing the heading "Compassionate Release Data" followed by this text in the email:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions. This report provides an analysis of those compassionate release motions decided through December 31, 2020 for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 27, 2021.

Data Overview

Through December 31, 2020, the Commission received the following information from the courts:

  • 2,549 offenders were granted compassionate release. This represents 21% of compassionate release motions.
  • 9,589 offenders were denied compassionate release. This represents 79% of compassionate release motions.
  • 96% of granted motions were made by the defendant.

Somewhat disappointingly, the full report linked here provides precious little additional data beyond circuit and district breakdowns of these motions and their dispositions. I would be especially interested in seeing a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction).  But I am excited to learn that the USSC data staff is keeping track of these matters and seemingly planning to regularly report of what it is tracking.   

June 10, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 08, 2021

Bureau of Justice Statistics releases "Capital Punishment, 2019 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with data on the administration of capital punishment in the United States through the end of 2019. As I have noted before, though BJS sometimes provides the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

June 8, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)