Saturday, March 10, 2012

Federal Prison Sentences Not Uniform

By William Fisher

New research reveals that typical prison sentences handed down by Federal judges for drugs, white collar and other kinds of crimes from 2007 to 2011 can vary widely from sentences meted out by other judges for similar cases in the same district.

Based on an analysis of more than 370,000 cases completed in the nation's federal courts during the last five years, this finding “raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.”

This first-of-its-kind, judge-by-judge review was carried out by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University and is based on hundreds of thousands of records obtained under the Freedom of Information Act as a result of a series of lawsuits against the Justice Department.

This has been combined with information obtained directly from the federal courts. Together, these data indicate that long-term efforts to improve the consistency of the federal sentences through the adoption of complex sentencing guidelines have not been entirely successful in curtailing large judge-to-judge differences in sentencing practices.

TRAC’S purpose, it said, is to improve the fairness and effectiveness of the courts’ functioning. “With this thought in mind, TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts.”

TRAC said,” A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is ‘just’. No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.”

But, TRAC added, “A fair court system also requires ‘equal justice’ under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.”

Here are a few examples of disparate sentences provided by TRAC involving drug convictions:

In the Northern District of Texas, which includes Dallas and Fort Worth, the median or typical sentence for each district court judge for drug cases for the past five years was calculated. (If a judge had a median or typical sentence of ten, half of her sentences would be below that number, half above.)

Eight judges who had each handed down at least 40 drug sentences are at the low end of this small group. For these federal judges, the median sentence was 60 months.

At the other extreme, however was another judge whose median sentence was 160 months. Nor did the sentences of the remaining six judges cluster together. In fact their typical sentences were also quite varied. Assuming the drug cases handled by these eight judges were assigned on an approximately random basis, this variation is hard to explain, TRAC says.

In the Eastern District of Virginia, which includes Alexandria, Norfolk and Richmond, there were fifteen judges who had each sentenced at least 40 drug offenders. Here the range in the typical sentences of judges was again very broad. The median sentence for three judges was 120 months, four times that of the median sentence of another judge with 30 months, TRAC says.

TRAC explains that “Part of these differences might be accounted for by differences in the composition of cases assigned judges located in different offices within the district. Alexandria judges had median sentences, which ranged from a low of 30 months to a high of 87 months, while Norfolk judges ranged from 79.5 months to 120 months. Thus, even within each office, the range in median sentences was still large.”

While large district-to-district differences were not uncommon, there were other districts where there was relatively strong agreement in the sentencing practices of the judges.

For example, the Minnesota District Court was one where fairly close agreement among judges on sentencing occurred. The nine district court judges there who had handled at least 40 drug cases clustered closely on their median sentences with a low of 52 and a high of 64 months.

Districts with two or three judges often showed more agreement. However, this wasn't always the case. The District of Columbia federal court, for example, had only three judges who had handled at least 40 drug cases. Here there was one judge with a median of only 27 months and another with a median sentence of 77 months, and the third was 51 months.

Similar patterns of differences in judge-to-judge median sentences were observed in other types of cases, including for white-collar crimes. In the Northern District of Illinois that includes Chicago, for example, the records showed there were a total of eight judges who had sentenced 40 or more defendants on white-collar crime charges from FY 2007 through FY 2011. The median sentence of these eight judges ranged from a low of zero -- that is, at least half of the defendants before that judge received no prison time -- to a high of 39 months.

The basis for TRAC's unique analysis was the case-by-case records that included each sentence imposed by federal district judges on defendants convicted of a federal crime during the past five years, FY 2007 - FY 2011. Excluded were cases handled by magistrate judges or special judges sitting by designation.

“To ensure that we only looked at judges who had sentenced a sufficient volume of individuals to make comparisons meaningful, we excluded judges that during this period had not sentenced at least 50 defendants. This left us with sentencing records on 885 district judges who had sentenced a total of 372,232 defendants over the past five years. The average number of defendants each had sentenced was 420,” TRAC declared.

The researchers developed an interactive tool to examine the record of individual judges, carrying out a detailed comparison of how the average and the median sentences for that judge compared with colleagues sitting on the same court.

“Background information on the judge, such as when she or he had been appointed, and their status as a regular versus senior status judge was noted. This tool also allowed us to check on the composition of the cases handled by each judge compared with those handled in that district, and drill in and do sentencing comparisons on subsets of similar cases — for example, similar types of cases (drugs, white collar, immigration, etc.) or similar lead charges,” TRAC explained.

The TRAC research may represent another step in the journey from a “Judge As King” approach, in which the judge is free to hand down significantly varying sentences for essentially the same crime; to Federal Sentencing requirements, in which the judge has virtually no discretion; to the current system of Federal Sentencing as guidelines only, thus allowing judges to take account of material differences between similar cases.

Though the Federal Sentencing Guidelines were originally styled as mandatory, the Supreme Court's 2005 decision in United States v. Booker found that the Guidelines violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory.

In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), the Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker.

Last year, the U.S. Sentencing Commission completed a thorough analysis of the application and effects of mandatory minimum sentences. It was the first systematic review of mandatory minimum sentences in 20 years. The Commission said, ”During those two decades the number of mandatory minimum sentences has grown exponentially, and with that growth the number of inmates serving mandatory sentences has ballooned, filling our prisons to bursting.”

Key findings of the report:

In fiscal year 2010, two of every three offenders convicted of an offense carrying a mandatory minimum penalty were drug offenders. Almost half of all drug offenders (48.7%) who were convicted of an offense carrying a mandatory minimum penalty were convicted of an offense carrying a 10-year penalty.

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by black offenders (31.5%), white offenders (27.4%) and other race offenders (2.7%).

Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.

The type of drug involved in drug cases significantly impacts the application of mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug types was in marijuana cases (44.3%).

The majority of offenders in nearly every function, including low-level secondary and miscellaneous functions, were convicted of an offense carrying a mandatory minimum penalty, although higher-level functions tended to be convicted of such statutes at higher rates.

The Commission’s analysis found that, for every function, the quantity of drugs involved in the offense resulted in a base offense level that included or exceeded the five-year mandatory minimum penalty.

Furthermore, the Commission’s analysis revealed that the quantity of drugs involved in an offense was not closely related to the offender’s function in the offense.

In fiscal year 2010, drug offenders convicted of a statute carrying a mandatory minimum penalty went to trial more than twice (4.5%) as often as drug offenders who were not convicted of an offense carrying a mandatory minimum penalty (1.6%). Furthermore, on average, the longer the mandatory minimum penalty an offender was facing, the less likely the offender was to plead guilty.

The Commission described one finding as particularly disturbing. “Mandatory minimums are justified on the basis that they will help get ‘the big fish’. The commission’s analysis of a 15 percent sample of fiscal year 2009 cases indicates that the mandatory minimum penalties sweep up a lot of minnows, rather than the big fish. Among all drug cases, couriers accounted for 23 percent of the prosecutions with street-level dealers another 17.2 percent, meaning that very small players accounted for over 40 percent of the cases. Going after these small fish was not what Congress intended when it passed mandatory minimum sentences.”

The commission concluded that for a mandatory minimum to be just it must meet these criteria: it should not be excessively severe, it must be narrowly tailored to apply only to those offenders who warrant such punishment, and it must be applied consistently.

The US houses the world’s largest prison population. According to the US Bureau of Justice Statistics (BJS) 2,266,800 adults were incarcerated in US federal and state prisons, and county jails at year-end 2010 — about .7% of adults in the US resident population. Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole. In total, 7,225,800 adults were under correctional supervision (probation, parole, jail, or prison) in 2009 — about 3.1% of adults in the U.S. resident population.

In addition, there were 86,927 juveniles in juvenile detention in 2007.

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