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April 11, 2009

Some local specifics for the application of federal sentencing guidelines

As documented here, the US Sentencing Commission has recently released its "District, State, and Circuit Statistical Packets." In the USSC's words, "Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located)."

Here are the links to local packets:

Students will get extra super bonus class participation points for noting in the comments any special or interesting data they can mine from all these materials

April 11, 2009 in Sentencing data | Permalink


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One interesting thing I found was a substantial discrepancy in the frequency of trial vs. plea bargaining between Circuits. See “Mode of Conviction by Circuit and District”, Table 2.

On the low side of the spectrum, in the Fifth, Ninth and Tenth Circuits, less than 2.7% of cases go to trial. However, in the Third and Seventh Circuits, over 6.7% of such cases do. What could explain this discrepancy – defendants are more than 300% likely to have their case end in trial in some circuits compared to others, if I am correctly understanding the data. I suppose possible explanations could include more resources to conduct trials, a diminished willingness to plea bargain by prosecutors (or defendants). Could it partially result from the tendency for immigration cases to end without trial, thus diminishing the percentage of trials in high immigration states such as California and Texas? I’m interested to hear others’ theories.
Another interesting point is in the Pi chart termed Figure A. Again, drug crimes constitute the single largest area of enforcement, both nationally and in the Sixth Circuit, prosecuted by federal courts. I am also curious as to whether the category “Firearms” deals only with the technical offenses such as felon-in-possession, which I think is likely, or whether violent firearms offenses are included. If the former, then it is notable that, in the Sixth Circuit, over 55% of all guideline defendants are Drugs and Guns criminals (43% nationally). Nationally, Drugs + Guns + Immigration constitute a whopping 70+% of all guideline defendants. And in Ohio, the drug category alone is over 40%.

So, federal criminal law is overwhelmingly dealing with regulatory offenses – in other words, the type of offenses that modern societies have *chosen* to criminalize dominate the federal criminal courts, not the types of offenses which have, throughout human history, been considered to be intrinsically bad acts (murder, sexual offenses, violence, property crimes, and so on). Of course, many of these crimes are prosecuted in state court systems. Still, we could prosecute these crimes of a federal level with far greater intensity and resources if we were willing to diminish the criminalization of regulatory offenses. It is also notable that marijuana offenders constitute 25% of the total drug offenders sentenced under the federal guidelines. Marijuana criminals are the largest single group of drug offenders if one separates crack and powder cocaine, as the Sentencing Commission has done.

One discrepancy which surprised me is in Table 6. The incarceration rate of defendants eligible for non-prison sentences is 65% nationally, but only 34% in the Sixth Circuit (and in Ohio even less). A considerable amount of this discrepancy can be accounted for by the lesser percentage of immigration offenses that the Sixth Circuit deals with. Nonetheless, Sixth Circuit defendants are much less likely to go to prison when the option to avoid incarceration is available. There are especially notable differences for fraud, firearms, and drug possession.

Another interesting discrepancy is that defendants in cases of prostitution/pornography, firearms, and drug trafficking fare much worse in length of their sentence than do defendants in larceny, fraud, counterfeiting, and bribery cases. (Table 7).

As Prof. Berman has mentioned, judges do clearly depart downwards with much greater frequency than they depart upwards. (Table 8). Ultimately, only 59% of cases nationally are sentenced within the guidelines. (And only 48% in Ohio). Thus, either the prosecutor or judge ultimately finds the guidelines inappropriate for more than 40% of cases, nationally, and in more than 50% of cases in Ohio. How effective can the guidelines really be then, considering how broad they are, but still are such that prosecutors and judges frequently feel the need to depart from them?

It is also notable how empowered prosecutors are in the sentencing determination. In over 25% of all cases, prosecutors ultimately make the decision to support a sentence beyond the guidelines. If a defendant hopes to receive a sentence the guidelines, he is twice as likely to ultimately gain this concession from the prosecutor than he is from the judge. (Table 8).

Posted by: Leon | Apr 12, 2009 12:57:08 AM

What Grand Unifying Theory explains those lawyer anomalies completely, every one listed, and others not listed? The biggest anomaly is the failure of the government to protect the public, especially law abiding minority citizens.


Posted by: Supremacy Claus | Apr 12, 2009 11:09:18 AM

I was interested in looking at Table 1 to see the different types of crime prevalent in the Sixth Circuit versus the National numbers. There are a couple categories where the Sixth Circuit’s % of crime is substantially higher than the national numbers. Specifically, for Drug-Trafficking, Firearms (an offense the Sixth Circuit trends toward giving non-prison sentences for, see Table 6), there are considerable differences between the Sixth Circuit and National percentages. In looking at the Ohio tables, these two categories were also outliers compared to the national numbers. It might be interesting to do a study of how districts tend to treat the crimes they encounter more often (than the national %), and whether they tend to be harsher, or more lenient, in punishing these crimes.

Branching off of something Leon commented on (the large disparity shown by Table 6 between the Sixth Circuit sentencing of those eligible for non-prison sentences versus the national numbers), one issue that we haven’t spent a lot of time on in class, but that I think is very interesting and important to the overall sentencing discussion is how we determine whether to make the jump from a non-prison punishment to a prison punishment. In looking at Table 6 the Sixth Circuit appears to be more willing to grant non-prison sentences than the national numbers for nearly every offense category listed.

The one category in Table 6 that seems to go against the grain is the primary offense of embezzlement. The Sixth Circuit gives over half of this category of defendant prison sentences, while the national trend is toward giving non prison sentences (74.3%).

These numbers make me wonder whether the 6th Circuit has consistently been more inclined to grant non-prison sentences to those who are eligible, and if so, what are the underlying explanations for this?

Posted by: Zach | Apr 15, 2009 11:59:03 AM

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