Sentencing Research Without USSC Data: Strategies and Lessons Learned

Research Summary The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in United States v. Booker (2005) and Gall v. United States (2007). In light of this USSC report, we provide an alternative set of analyses that we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes post-Booker and Gall. We attempt first to replicate the USSC's models. Then, making different modeling assumptions, we present alternative models of sentencing outcomes across four time periods spanning fiscal years (FY) 2000 to 2009. We find that post-Booker/Gall: 1 Race/ethnic/gender disparity in sentence length decisions is generally comparable with pre-2003 levels; 2 African American males’ odds of imprisonment have increased significantly post-Gall; 3 Immigration cases account for a significant proportion of sentence length disparity affecting Black males; 4 “Government-sponsored” below Federal Sentencing Guidelines sentences are a greater source of racial disparities than judge-initiated deviations. Finally, because much of the debate surrounding the Booker decision involves questions of whether the guidelines must be mandatory to be effective, we also present analyses of federal sentencing disparities prior to the 1996 Koon v. United States decision, a period when the guidelines were arguably most constraining of judicial decision making. Comparing post-Booker and Gall to pre-Koon sentencing practices, we find: 5 With the exception of incarceration disparities for black males, all race/ethnic/gender groups are sentenced either the same or less harshly (compared to whites) under the new advisory system. Policy Implications One of the chief policy aims of the sentencing guidelines, and the sentencing reform movement more generally, is the reduction of racial, ethnic, and gender disparities in punishment. In the aftermath of the Booker and Gall decisions, which made the Federal Sentencing Guidelines effectively advisory, many commentators have feared that federal judges, as a result of their increased discretion, may use offender characteristics at sentencing, and thus disparities based on race, ethnicity, and gender would increase. A recent USSC report, which found that sentencing disparities have increased in the wake of Booker and Gall, suggests that such fears are warranted and has further strengthened calls for a policy fix to post-Booker sentencing. One such proposed policy solution was House bill H.R. 1528 which would have, among other things, transformed the Sentencing Guidelines into a complex system of mandatory minimums in order to curb judicial discretion. In response to the USSC report as well as policy solutions to introduce a more rigid sentencing system, we suggest that the federal sentencing data, as yet, provide insufficient evidence of increased post-Booker disparity to warrant renewed restrictions on judicial discretion. Our analysis, generally, shows that sentencing disparities post-Booker and Gall are comparable to those just prior to these decisions, and are actually considerably less than in earlier time periods when the guidelines were more rigid and constraining. This latter finding raises serious questions about whether the guidelines must be mandatory in order to limit racial/ethnic/gender disparities. However, we do find that disparity in the imprisonment decision for black males increased post-Gall, which is ground for concern. Yet our results do not lend support to policy solutions that would seek to simply “re-mandatorize” the guidelines. Because our analysis shows that the bulk of extralegal disparities are observed in the incarceration decision and not the sentence-length decision (a distinction that is not made in the USSC report), reintroducing a rigid sentencing scheme may actually exacerbate incarceration disparities while having limited impact on sentence length disparities. Overall, rather than “blanket” solutions such as broad reductions in judicial discretion, we think that any policy changes to the Sentencing Guidelines should be focused on areas that are shown to be associated with sentencing disparities. According to our results, such areas include incarceration decisions, immigration offenses, and government-sponsored downward departures. Ultimately, we think careful consideration of the most problematic areas of sentencing, including those decisions made by prosecutors as well as judges, will be most effective at curbing extralegal disparities and increasing fairness at sentencing, both of which were original goals of the sentencing reform movement.

Native Americans are US citizens, but they are also tribal nationals subject to complex and unique criminal jurisdiction arrangements over Indian lands. Tribal nations typically have tribal court jurisdiction over less serious crimes, but for serious crimes the federal justice system often supersedes tribal authority, exposing Native Americans to more severe punishments. In addition, recent federal programs have attempted to foster greater tribal/federal criminal justice coupling. Yet, examinations of criminal punishment of Native Americans are few, and most are outdated and/or of very limited generalizability. We examine the punishment of Native American defendants in federal court, focusing on 28 federal districts with substantial Indian presence. Using recent US Sentencing Commission data, as well as contextual data from the Bureau of Indian Affairs and tribal courts, we focus on differences in the federal sentencing of Native American defendants, and how these differences are conditioned by indicators of tribal-federal criminal justice coupling.

Research Summary:In United States v. Booker, the U.S. Supreme Court held that the federal sentencing guidelines must be considered advisory, rather than mandatory, if they are to remain constitutional under the Sixth Amendment. Since the decision, the U.S. Sentencing Commission has provided policy makers with accurate and current data on changes and continuity in federal sentencing practices. Unlike previous changes in legal doctrine, Booker immediately increased the rates of upward and downward departures from the guideline range. Government‐sponsored downward departures remain the leading category of outside–the‐range sentences. The rate of within‐range sentences, although lower than in the period immediately preceding Booker, remains near rates observed earlier in the guidelines era. Despite the increase in departures, average sentence lengths for the overall caseload remain stable, because of offsetting increases in the seriousness of the crimes being sentenced and in the severity of penalties for those crimes. Analyses of the reasons that judges reported for downward departures suggest that treatment of criminal history and offender characteristics are the two leading areas of dissatisfaction with the guidelines.Policy Implications:Assessment of changes in sentencing practices following Booker by different observers depends partly on competing institutional perspectives and on different degrees of trust in the judgment of judges, prosecutors, the Sentencing Commission, and Congress. No agreement on whether Booker has bettered or worsened the system can be achieved until agreement exists on priorities among the purposes of sentencing and the goals of sentencing reform. Both this lack of agreement and an absence of needed data make consensus on Booker's effects on important sentencing goals, such as reduction of unwarranted disparity, unlikely in the near future. Similarly, lack of baseline data before Booker on the effectiveness of federal sentencing at crime control makes before‐after comparisons impossible. Despite these limitations, research provides a sounder framework for policy making than do anecdotes or speculation and sets valuable empirical parameters for the federal sentencing policy debate.

Regulatory changes that affect coding for immunotherapy

Many events that preceded the passage of the Sarbanes–Oxley Act 2002 are now well known. Congress rushed to enact Sarbanes–Oxley to counter a growing crisis of confidence about the integrity of the US financial marketplace. The first section of this paper re-examines some of the preceding events and issues that led Congress to enact this broad legislation. The second section then examines some problematic federalism issues raised by the legislation. The third section discusses some of the new white collar crime provisions enacted by Sarbanes–Oxley, as well as Congress's mandate for the US Sentencing Commission to increase the punishment for key white collar offences.

Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve the uncertainties which exist at the edges of their criminal code. When a federal sentence turns upon a state crime, these uncertainties must be resolved by federal judges, leaving federal courts in the position of attempting to prophesize state law. As a result, two problems arise: a federal court may get a particular case wrong, sentencing a defendant to a sentence not properly applicable, and federal courts may split on the meaning of a state law, with no opportunity to get an authoritative ruling unless the precise issue arises in a new state case. There is a better way. This problem was faced once before, in the civil context. An elegant solution was found: certification. The already constructed certification framework can and should be utilized by federal courts facing unclear, unsettled, or unencountered questions of substantive state criminal law. This would solve the federalism and accuracy problems currently inherent in federal sentencing based upon prior state conviction.

Research Article| October 01 2012 New Data and New Questions: TRAC’s Contribution to Federal Sentencing Douglas A. Berman, Douglas A. Berman Co-Managing Editor, Federal Sentencing Reporter Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law, The Ohio State University Search for other works by this author on: This Site PubMed Google Scholar Steven L. Chanenson Steven L. Chanenson Co-Managing Editor, Federal Sentencing Reporter Associate Dean for Faculty Research, Professor of Law, Villanova University School of Law Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2012) 25 (1): 1–5. https://doi.org/10.1525/fsr.2012.25.1.1 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Douglas A. Berman, Steven L. Chanenson; New Data and New Questions: TRAC’s Contribution to Federal Sentencing. Federal Sentencing Reporter 1 October 2012; 25 (1): 1–5. doi: https://doi.org/10.1525/fsr.2012.25.1.1 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2012 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp2012 Article PDF first page preview Close Modal You do not currently have access to this content.

These Editor's Observations introduce Volume 24, Number 5 of the Federal Sentencing Reporter, an issue devoted to renewed discussion in Congress and the U.S. Sentencing Commission about whether there is a need for legislative action to revise or replace the advisory federal sentencing guidelines system judicially created by the U.S. Supreme Court's 2005 decision in United States v. Booker. It describes the basic positions of the main institutional actors, briefly summarizes the articles in the issue, and makes a prediction about the likelihood of action in the near term.

Indirect Purchaser Suits after the Class Action Fairness Act

To Fight to Save . . . In Space: A Legal Argument that a Space 'Coast Guard' Is Increasingly Necessary for Effective 21st Century Space Governance

Cruel and Unusual Federal Punishments

In 1984 Congress passed the Sentencing Reform Act (the Act)1 in response to the widely held view that defendants who committed similar crimes, under similar circumstances, were receiving grossly disproportionate sentences in federal courts.2 The Act established the Federal Sentencing Commission (the Commission) to promulgate mandatory sentencing guidelines (the Guidelines) for federal judges.3 After long debates, the Commission promulgated the Guidelines, which took effect in November 1987.4 For drug and money crimes,5 the Guidelines require a trial judge to make, at sentencing, an independent determination of the amount of contraband involved in the transaction. Additionally, the trial judge must determine whether certain aggravating or mitigating circumstances exist. The Guidelines are silent, however, as to what standard of proof the trial judge should apply in determining the actual amount of drugs or money involved or in determining whether aggravating or mitigating circumstances exist.

In efforts to understand the Sentencing Reform Act’s effectiveness on federal drug offenses, the current study seeks to determine the application of the safety valve provision in the 2013 federal sentencing data from the U.S. Sentencing Commission. To better analyze the impact of the race, ethnicity, or gender of the defendant, the current study analyzes cases where the safety valve could have been applied in three different models being race/ethnicity of the defendant, legal factors, and then extra-legal factors to understand the judge’s decision-making on applying the safety valve provision under 18 U.S.C. §3553(f). The findings show evidence of racial and gender disparity. Both Black defendants and Black male defendants are less likely to have the safety valve applied in their cases than White defendants and White male defendants. While cases involving a Hispanic defendant and a Hispanic male defendant are more likely to have the safety valve applied.