Federal Sentencing Research Articles

Examining American Indian Disadvantage: Social Context and Federal Sentencing Decisions

Prior literature suggests that Blacks and Latinos are sentenced more harshly than similarly situated White offenders. Still, less is known about whether disparities extend to other minority groups, and consequently little is known about the treatment of these neglected groups. Recent research has investigated social context and disparities. However, this body of research has not assessed if social context impacts how other minority groups are treated. To address this gap, this manuscript focuses on American Indians, how they are treated, and if social context amplifies American Indian disadvantage. The minority threat perspective is used and data is analyzed from the Federal Justice Statistics Program Data Series and the U.S. Census. Implications for theory, research, and policy are discussed.

The Sixth Amendment Right to Fair Sentencing: An Analysis of Acquitted, Dismissed, and Uncharged Conduct Under the Federal Sentencing Guidelines

The Sixth Amendment Right to Fair Sentencing: An Analysis of Acquitted, Dismissed, and Uncharged Conduct Under the Federal Sentencing Guidelines

Recognizing Significant Environmental Deprivation as a Mitigating Factor in the Federal Sentencing System: Some Lessons from Commonwealth Jurisdictions

Recognizing Significant Environmental Deprivation as a Mitigating Factor in the Federal Sentencing System: Some Lessons from Commonwealth Jurisdictions

Taking the long view: A temporal assessment of minority threat theory in 21st century sentencing

PurposeResearchers have offered several reasons for the mixed minority threat-sentencing literature including diverse dependent variables, heterogenous threat conceptualizations, and incongruent threat measurements. An overlooked potential explanation, however, is the heavy reliance on cross-sectional snapshots. If minority threat effects vary over time, then past works showing differing results may not “contradict,” but rather reflect substantive temporal shifts in minority threat effects. Against this backdrop, the current study “zooms out” and considers the evidence for minority threat theory in sentencing throughout the 21st century. MethodsUsing data spanning nearly 20 years, we examine the effects of minority population size (static threat) and change (dynamic threat) on federal sentence length outcomes at multiple time points – both overall and specifically for minority defendants. In doing so, we produce 40 tests of minority threat theory ranging from 2000 to 2018. ResultsFindings indicate that support for minority threat theory in sentencing is meager, but conclusions about the theory's predictive validity often depend on the time point, racial/ethnic group, and threat measurement examined. ConclusionsResults suggest that inquiries into whether support for minority threat exists may be too simplistic. Instead, researchers may be better off asking “when does support for minority threat theory exist?”

The Unfulfilled Potential for Independent Federal Sentencing Research

The Unfulfilled Potential for Independent Federal Sentencing Research

Reflecting on Nearly Four Decades of the Great American Sentencing Songbook

This short article provides a brief overview for the Federal Sentencing Reporter’s republishing of past articles using a “greatest hits” theme. This article notes the wide range of people who have contributed in myriad ways to the long-running Federal Sentencing Reporter band. The visionary work of founding editors Daniel J. Freed and Marc L. Miller are noted, along with the many wonderful producers of the FSR experience at the University of California Press.

Social Context and Early Disposition Departures: An Examination of Disparity in Immigration Sentencing Across U.S. District Courts

In the 1990s, the United States Attorneys’ Offices implemented programs to make sentencing for immigration offenses more efficient by designating a number of “Fast-Track” districts. In 2012, these programs were expanded to all federal districts. Using data from multiple sources including federal sentencing data from 2015 to 2016 and community-level variables from the American Community Survey, this study examines how individual and district-level characteristics affect receipt and magnitude of early disposition departures. Findings suggest Hispanic population, Republican Control, and original fast-track district predict early disposition departure receipt and sentence length. District-level characteristics can influence when and how these departures are used.

Retroactive Guidelines Amendments Must Apply to Individuals Who Receive Below-Guidelines Sentences to Protect the Individualized Sentencing Required by Federal Sentencing Statutes

Retroactive amendments to the federal sentencing guidelines, such as Amendment 821 to the calculation of criminal history, confer discretion on judges to reduce sentences when the Sentencing Commission determines that a guideline is overly harsh. The statute on retroactive amendments, 18 U.S.C. § 3582(c)(2), authorizes modification of sentences “based on” the pre-amendment guidelines range. From the time of the initial Commission until 2011, all defendants whose guidelines range calculations included the amended guideline were eligible for a comparably lower sentence, regardless of whether the sentence was below-, within-, or over the guidelines range, under U.S.S.G. § 1B1.10. But in response to Booker, the Commission amended the policy statement in 2011 to bar from eligibility persons who received below-guidelines sentences, whether by downward variance or departure. This change reflected the earlier Commission’s hostility to Booker variances under the advisory guidelines and conflicts with subsequent Supreme Court authority holding that downward variances are “based on” the guidelines range within the meaning of § 3582(c)(2). By disqualifying those who had grounds for below-guidelines sentences, the Commission fails to follow statutory directives regarding individualized sentencing and avoidance of unwarranted disparities. The exclusion of persons who established that downward departure or variance was warranted under the overly harsh pre-amendment guidelines is irrational and unfair, apparently based on an anachronistic attachment to the mandatory guidelines. The Commission should amend its policy statement without delay to recognize eligibility for all defendants whose sentences are “based on” the guidelines range within the broad meaning of the statute.

Reflections on the Rewriting the Sentence II Summit on Alternatives to Incarceration

The Center for Justice and Human Dignity hosted the Rewriting the Sentence II Summit at George Washington Law October 17-18, 2023. This article reviews the presenters’ key comments and the leading insights set forth throughout the Summit regarding sentencing reform and the expansion of alternatives to incarceration. Notably, the sessions included the participation of directly impacted individuals alongside judges, prosecutors, and academics. Keynote speaker Dr. Alisha Moreland-Capuia, M.D. discussed trauma-informed systems change. Various federal and state judges shared their experiences in establishing new alternative to incarceration programs within their courts, exercising judicial discretion, and incorporating compassion and humanity in sentencing. Prosecutors discussed their own experiences of pursuing alternatives to incarceration in appropriate cases, and how their views have evolved. Judge Nancy Gertner presented a critical analysis of the federal sentencing guidelines and their effect on sentencing outcomes. Panelists also discussed current research findings on recidivism reduction, the modern landscape and implications of electronic monitoring, and the multitude of challenges facing jurisdictions in implementing more effective approaches to public safety across all stages of the criminal legal system. The Summit featured speeches from Federal Bureau of Prisons Director Colette Peters and the Chair of the U.S. Sentencing Commission, Hon. Carlton Reeves. Full session recordings can be found at www.cjhd.org/summit.

Whited Sepulchers: Exploring Explanations for White Overrepresentation in Online Child Sexual Abuse and Exploitation

ABSTRACT This analysis is concerned with the documented-yet-seldom-examined overrepresentation of whites in the US in online child sexual abuse and exploitation or OCSAE. First, we examine two sources of data which indicate an overrepresentation of whites in online child sexual abuse and exploitation including U.S. federal sentencing data and a rapid evidence review of relevant academic research. Second, this analysis then considers potential explanations for this disparity including both differential enforcement and differential involvement. Differential enforcement explanations include the possibility that the disparity is the result of differing law enforcement, prosecutorial, or sentencing practices or varying reporting practices among racial/ethnic groups. The differential involvement explanations considered include differing structures of opportunity (e.g., access and quality of internet available by race), possible variations in sexual fetishism and pornography consumption between racial groups, and the role of victim race in sexual abuse and exploitation. It is likely impossible to provide a definitive list of potential explanations in a single manuscript. This analysis thus considers those explanations that we consider either to be the most likely or are the most apparent.

The Geography of Race and Ethnicity Effects in Federal Sentencing: A Descriptive and Spatial Analysis

Research has focused mainly on whether race and ethnicity influence sentencing outcomes. Much less attention, however, has been paid to where, geographically, disparities occur in the United States. Using the United States Sentencing Commission’s sentencing data from FY2015 to FY2019, we estimated the effects of race and ethnicity on sentencing outcomes across 90 U.S. districts. First, we examined whether race and ethnicity varied across districts. Then we mapped district-level racial and ethnic disparities across the United States. Finally, we examined whether district-level racial and ethnic disparities were spatially correlated, creating hot- or cold spots of disparity. Evidence suggests that disparities are not concentrated within specific regions of the United States and are not spatially correlated. Instead, racial and ethnic disparities seem to be somewhat dispersed geographically. Yet, disparities do seem to concentrate in a relatively small portion of U.S. districts.

Sex differences in pre-incarceration mental illness, substance use, injury and sexually transmitted infections and health service utilization: a longitudinal linkage study of people serving federal sentences in Ontario

BackgroundPeople who experience incarceration have poorer health than the general population. Yet, we know little about the health and health service utilization of people during the critical period prior to their incarceration, relative to during incarceration and post-release. In this study, we conducted a longitudinal cohort study of 39,498 adults in Ontario, Canada between January 1, 2002, and December 31, 2011 using linked administrative health and correctional data to describe mental illness, substance use, injury, sexually transmitted infections and health service utilization of men and women in federal prisons in the 3 years prior to their incarceration, compared to a matched group.ResultsWe found that, in the 3-year period prior to their incarceration, men (n = 6,134) and women (n = 449) experiencing their first federal sentence had poorer health across all indicators examined (e.g., psychosis, drug/alcohol use, and self-harm) and higher outpatient psychiatric and emergency department visits, compared with the matched group. Women in the pre-incarceration group exhibited a higher prevalence of self-harm and substance use, relative to women in the matched comparison group and higher relative prevalence to that of men in the pre-incarceration group, compared to their matched counterparts.ConclusionsDisparities in health and health service utilization are gendered and exist prior to incarceration. The gendered nature of these findings, specifically the significantly higher prevalence of poor health among women across several indicators, necessitates a focus on the social and systemic factors that contribute to these disparities. Gender-responsive and trauma-informed primary, secondary, and tertiary prevention strategies, alongside transformative approaches to justice should be considered in addressing the health needs of men and women who experience incarceration.

Memorandum to All Federal Prosecutors, General Department Policies Regarding Charging, Pleas, and Sentencing

Research Article| February 01 2023 Memorandum to All Federal Prosecutors, General Department Policies Regarding Charging, Pleas, and Sentencing U.S. Attorney General U.S. Attorney General Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2023) 35 (3): 157–160. https://doi.org/10.1525/fsr.2023.35.3.157 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 U.S. Attorney General; Memorandum to All Federal Prosecutors, General Department Policies Regarding Charging, Pleas, and Sentencing. Federal Sentencing Reporter 1 February 2023; 35 (3): 157–160. doi: https://doi.org/10.1525/fsr.2023.35.3.157 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. This material is in the public domain and may be reprinted.2023 Article PDF first page preview Close Modal You do not currently have access to this content.

Report to the House of Delegates and Resolution (adopted)

Research Article| February 01 2023 Report to the House of Delegates and Resolution (adopted) American Bar Association American Bar Association Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2023) 35 (3): 192–197. https://doi.org/10.1525/fsr.2023.35.3.192 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 American Bar Association; Report to the House of Delegates and Resolution (adopted). Federal Sentencing Reporter 1 February 2023; 35 (3): 192–197. doi: https://doi.org/10.1525/fsr.2023.35.3.192 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. © 2022 American Bar Association. All rights reserved.2022 Article PDF first page preview Close Modal You do not currently have access to this content.

Proposed Amendments to the Sentencing Guidelines (preliminary)

Research Article| February 01 2023 Proposed Amendments to the Sentencing Guidelines (preliminary) U.S. Sentencing Commission U.S. Sentencing Commission Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2023) 35 (3): 186–191. https://doi.org/10.1525/fsr.2023.35.3.186 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 U.S. Sentencing Commission; Proposed Amendments to the Sentencing Guidelines (preliminary). Federal Sentencing Reporter 1 February 2023; 35 (3): 186–191. doi: https://doi.org/10.1525/fsr.2023.35.3.186 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. This material is in the public domain and my be reprinted.2023 Article PDF first page preview Close Modal You do not currently have access to this content.

Memorandum to All Federal Prosecutors, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases

Research Article| February 01 2023 Memorandum to All Federal Prosecutors, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases U.S. Attorney General U.S. Attorney General Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2023) 35 (3): 161–163. https://doi.org/10.1525/fsr.2023.35.3.161 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 U.S. Attorney General; Memorandum to All Federal Prosecutors, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases. Federal Sentencing Reporter 1 February 2023; 35 (3): 161–163. doi: https://doi.org/10.1525/fsr.2023.35.3.161 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. This material is in the public domain and may be reprinted.2023 Article PDF first page preview Close Modal You do not currently have access to this content.

Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders

Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders

Border Apprehensions and Federal Sentencing of Hispanic Citizens in the United States

Border Apprehensions and Federal Sentencing of Hispanic Citizens in the United States

Showcase: A Data-Driven Dashboard for Federal Criminal Sentencing

The main purpose of the Sentencing Reform Act of 1984 was to provide more uniformity in sentencing and reduce interjudge disparity. Subsequently, the act created the federal sentencing guidelines to offer judges a possible sentencing range for offenses. However, since these recommendations were based on historical data, the guidelines amplified existing biases and increased inequality and the disproportionate sentencing of minorities. To address this problem, we developed an artifact called “ShowCase”—a data-driven dashboard—that is grounded in penal theory, organizational context theory, social bonds theory, and triangulation notion in design theory. The artifact helps judges make fairer and more objective decisions by integrating a variety of data points. We used a design science research methodology and mixed methods to guide the development and evaluation of the proposed dashboard. Our research inquiry revealed the legal and extralegal factors that contribute to more equitable judicial decisions. We also found support for integrating data science and more diverse viewpoints in the sentencing process. Our study shows that a validated data-driven dashboard can be used to promote fairness, objectivity, and transparency in the criminal justice system.

Saving the People Congress Forgot

Lost among more than 150,000 federal prisoners is a small cohort of “old law” people who have served many decades in custody. They were sentenced for offenses committed prior to November 1987, when the Federal Sentencing Guidelines went into effect. These are some of the oldest and most vulnerable people in the federal system, and least likely to re-offend. The possibility of release for most of them lies with the U.S. Parole Commission, a dysfunctional government agency. Unlike other federal prisoners, old law people cannot ask a court for compassionate release. The Commission was scheduled to go out of business in 1992, but instead its role has changed and it has been continually re-authorized, currently through October 2023. But as the article explains, the Commission is a failed agency: it has lost track of old law people and has not reported accurately to Congress. Further, the Agency was created to oversee a vastly different population than the aging and medically vulnerable people under its jurisdiction now. The article recommends amending the First Step Act to allow all old law people to apply for compassionate release under the same procedures available to new law prisoners. Congress should not continue to re-authorize the Parole Commission. Parole authority should be transferred to U.S. magistrate judges, to apply release criteria more suited to an elderly population. Finally, clemency petitions for everyone sentenced under the old law should be prioritized by President Biden.