Federal Sentencing Research Articles

Life lessons: Examining sources of racial and ethnic disparity in federal life without parole sentences*

AbstractAlongside capital punishment, sentences to life without the possibility of parole are one of the most distinctive aspects of the American system of criminal punishment. Unlike the death penalty, though, almost no empirical work has examined the decision to impose life imprisonment. The current study analyzes several years of recent federal sentencing data (FY2010–FY2017) to investigate underlying sources of racial disparity in life without parole sentences. The analysis reveals disparities in who receives life imprisonment, but it finds these differences are attributable mostly to indirect mechanisms built into the federal sentencing system, such as the mode of conviction, mandatory minimums, and guidelines departures. Both Black and Hispanic offenders are more likely to be eligible for life sentences under the federal guidelines, but conditional on being eligible, they are not more likely to receive life sentences. Findings are discussed in relation to ongoing debates over racial inequality and the growing role that life imprisonment plays in American exceptionalism in punishment.

The Datafication of Law: How Technology Encodes Carceral Power and Affects Judicial Practice in the United States

This inquiry explores how data analyses about US Federal sentences have transformed sentencing practice beginning in the mid-1980s. I consider this inquiry an early case of the datafication of law, a pervasive process that translates legal practice into data and embeds it in digital networks so it can be tracked and analyzed in real time. To explore datafication historically and in relation to legal practice and power, I consider it not as an objective and passive undertaking but, rather, as an ideological and performative process that encodes and enacts normative presumptions and desirable futures. The empirical inquiry traverses “levels of analysis” and thus bridges prominent perspectives in sociolegal research. In so doing, I identify four mechanisms that mediate “large-scale” processes and “local” practices: field assembly, symbolic projection, material inscription, and boundaries spanning. Substantively, I show how datafication has not simply described, but also transformed, sentencing practice according to a colorblind-carceral imaginary that strives to fix the present in place. By relentlessly translating decisions into data forms that derive from this carceral imaginary, datafication affects judicial action and partakes in sustaining legacies of oppression. Yet, like other technologies, datafication also reveals dialectic dimensions in opening up to new actors and subjecting its ideological underpinnings to contestation and change.

Citizenship and Sentencing: Assessing Intersectionality in National Origin and Legal Migration Status on Federal Sentencing Outcomes

Objectives: This study seeks to understand how national origin and legal migration status of noncitizen defendants in federal criminal courts shape incarceration and sentence length decisions. Method: The authors use annual United States Sentencing Commission (USSC) Monitoring of Federal Criminal Sentences (MFCS) datasets (2011–2016) to examine the impact of defendant’s (1) national origin and (2) legal versus illegal migration status on incarceration and sentence length decisions in federal criminal courts. In addition, in order to account for effects of immigration cases, supplemental analyses are conducted for (1) non-immigration offenses and (2) immigration-only offenses. Results: For the incarceration decision, noncitizen defendants have higher odds of incarceration than U.S. citizens, net of other factors. These effects are less consistent in the sentence length decision. These relationships systemically differ across national origin and legal migration status. Conclusions: Punishment disadvantages based on one’s citizenship are particularly pronounced for defendants from Mexico, Latin America, and Africa and especially for those with “illegal” migration status. As noncitizen populations continue to grow in federal courts and in the U.S. more broadly, understanding and addressing these citizenship disparities in punishment will be increasingly important.

The Offense-Specific Nature of Gender and Familial Responsibility in United States Federal Sentencing, 2010–2016

Prior sentencing research has identified leniency afforded to females (compared with males) and those with familial responsibility (compared with those without). Studies have also found that the effect of defendant gender, familial responsibility, and their intersections depend on the type of offense examined. What remains unclear is the situations in which these factors matter more or less. The purpose of this study is to disaggregate extralegal effects by understanding how gender, familial responsibility, and their intersections influence federal sentencing outcomes across various offense types. Findings from this study suggest that gender, familial responsibility, and their combinations exert different influences depending on the (a) dependent variable and (b) offense type examined.

From the Bird’s Eye

Criminal sentences are rarely reversed for being too long. Of the approximately one million federal sentences imposed in the past fifteen years, appellate courts have only held about two dozen substantively unreasonable. Judges have, even in public statements, described substantive reasonableness review as “functionally nonexistent” and “a waste of time.” Against this backdrop, three decisions from the Sixth Circuit published within the last year are nothing short of remarkable. In each case, the panel concluded that the district court, despite following standard processes and procedures, had nonetheless imposed a substantively unreasonable sentence. This Article examines these cases in detail, to glean lessons for scholars and practitioners. I argue that, in each decision, the Sixth Circuit took a bird’s eye perspective to the issues at hand, reaching a common-sense decision based on aggregative sentencing data, case law, and the defendant’s prior criminal history. These factors, I further argue, provide a model for other appellate courts who hope to engage in more searching substantive reasonableness review. I also acknowledge some limits to the Sixth Circuit’s approach. In each of these three cases, the appellate court reined in district courts for imposing above-guideline sentences. The decisions, however, say little about what—if any—role an appellate court should play in mitigating harsh sentences that are within (or even below) the guidelines. Reform of such sentences may require stakeholders to look elsewhere, including either legislative reform or appointment of a more diverse set of district judges.

Addressing the Issue of Race and Drug Offenses: An Analysis of the Safety Valve Provision in Federal Sentencing

ABSTRACT 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.

Understanding overdose incidents in Canadian federal custody

BackgroundWhile the community effects of the opioid-related drug crisis in Canada are well documented, limited detailed data is available on overdose trends among custodial populations. Given that this crisis has disproportionate impacts on justice involved persons, research is needed to understand the implications of this crisis within institutional settings. MethodsWe examined all overdose incidents that occurred between the 2012/2013 and 2018/2019 fiscal years in a federal correctional institution in Canada. An incident report search was conducted to identify overdose related incidents during this period. Information about the incident and characteristics of the victim was collected from incident reports, investigations, and victim case files. ResultsOver the period under examination, overdose incidents steadily increased (i.e., from 40 in 2012/2013, to 110 non-fatal incidents in 2018/2019), although there was considerable regional and institutional variation. The number of incidents involving opioids, particularly fentanyl, increased both in raw numbers and as a percentage of overall incidents (i.e., from 3% in 2012/2013 to 47% in 2017/2018, and 34% of non-fatal incidents in 2018/2019). Other substances continue to contribute to overdose incidents; in fact, non-opioid prescription medications (i.e., non-illicit medications such as anti-convulsant drugs and anti-depressants) remain the most common among intentional non-fatal incidents. Relative to the general in-custody population, victims of overdose incidents tended to be younger and were more likely to be serving a determinate sentence, be on a repeat federal sentence, and be serving time for robbery. Mental health conditions and histories of substance use were common. ConclusionThe effects of the overdose crisis are pronounced within certain Canadian federal institutions, illustrated by a growing number of fentanyl-related incidents. Institutional variation and variation in incidents (e.g., substance and intentionality) highlight diversity in drug activities among this custodial population and the need for multi-faceted responses that are reflective of local situations.

A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines

Research Article| February 01 2021 A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines Hon. Jack B. Weinstein Hon. Jack B. Weinstein United States District Judge, Eastern District of New YorkAs part of this Issue dedicated to the Honorable Jack B. Weinstein (EDNY), we are pleased to reprint this article authored by Judge Weinstein. This article originally appeared in FSR Vol. 5, No. 1 at p. 6 (July/ August 1992)This paper was originally drafted as notes for a discussion at the March 2, 1992 meeting of the Sentencing Institute for the Second and Eighth Circuits in Lexington, Kentucky. Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2021) 33 (3): 202–205. https://doi.org/10.1525/fsr.2021.33.3.202 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 Hon. Jack B. Weinstein; A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines. Federal Sentencing Reporter 1 February 2021; 33 (3): 202–205. doi: https://doi.org/10.1525/fsr.2021.33.3.202 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. © 2021 Vera Institute of Justice. All rights reserved.2021 Article PDF first page preview Close Modal You do not currently have access to this content.

Caught In-Between: A Video Essay of Masculine Identity and Methamphetamine Use in the Rural South

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.

Opening the “Black Box” of Federal Illegal Reentry Sentencing: A Non-Participant Observational Analysis of Sentencing Constraints and Judicial Discretion

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.

A Judge’s Attempt at Sentencing Consistency After Booker

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Some Reflections on Seven Lean Years of Guidelines Sentencing

Research Article| February 01 2021 Some Reflections on Seven Lean Years of Guidelines Sentencing Hon. Jack B. Weinstein Hon. Jack B. Weinstein As part of this Issue dedicated to the Honorable Jack B. Weinstein (EDNY), we are pleased to reprint this article authored by Judge Weinstein. It originally appeared in the July/August 1995 issue of FSR. Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2021) 33 (3): 197–198. https://doi.org/10.1525/fsr.2021.33.3.197 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 Hon. Jack B. Weinstein; Some Reflections on Seven Lean Years of Guidelines Sentencing. Federal Sentencing Reporter 1 February 2021; 33 (3): 197–198. doi: https://doi.org/10.1525/fsr.2021.33.3.197 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. © 2021 Vera Institute of Justice. All rights reserved.2021 Article PDF first page preview Close Modal You do not currently have access to this content.

Judge Weinstein's Contributions to Sentencing Law

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Jack Weinstein

This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and effect reform more broadly in the system they are called upon to administer – an example that some other judges already have embraced. In his scholarship, Judge Weinstein also has turned his critical lens inward and examined whether this work is consistent with the judicial role. He concludes that it is, but offers valuable guidance for other judges considering following in his footsteps for how to do so in a way that minimizes concerns about partiality. In the end, Judge Weinstein concludes that such work is not only permissible but required when judges perceive injustice. Few will be as creative, prolific, or persuasive as Judge Weinstein has been. But he leaves behind a fully articulated vision of an active district court judge and invites other judges to consider the kind of judge they want to be given the limits and possibilities that accompany their position.

Sentencing Abstention

A primary role of the Supreme Court is to resolve conflicts among the federal courts of appeal. When the split concerns the federal sentencing guidelines, however, the Supreme Court has ceded this role to the U.S. Sentencing Commission, effectively allowing the Commission to act as the court of last resort in this context. As then-Judge Alito recognized, “no other federal agency—in any branch—has ever performed a role anything like it.” This anomaly has largely escaped academic attention because the Court’s abdication comes in the form of certiorari denials, which are buried in the Court’s long order lists. But the consequences of the Court’s refusal to review splits involving federal sentencing policy—referred to here as “sentencing guidelines abstention”—cannot be ignored. Sentencing guidelines abstention perpetuates uncertainty and wide-ranging sentencing disparities, meaning the length of a federal defendant’s sentence will depend on the happenstance of where the defendant is sentenced. The principled and fair administration of justice cannot tolerate such ambiguity and randomness. This Article argues that there is no sound basis for sentencing guidelines abstention. It outlines reasons—grounded in precedent, congressional intent, administrative law principles, and practical considerations—why the Court should reassume its traditional role of resolving federal sentencing guideline splits, provide uniformity and consistency to the federal judiciary, and contribute thereby to the development of a reasoned and coherent federal criminal justice system.

How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012. By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana. Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century. But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically. In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012. This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade. While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined. Notably, in 2012, the majority of persons sentenced for marijuana offenses in federal court were Hispanic (66%) followed by white (22%), Black (8%), and other races (3%). But by 2020, though the majority were still Hispanic (62%), the number of persons sentenced for marijuana who were Black had doubled to 18% and white offenders were down to 15% with other races at 5%. These data suggest that whites are benefiting relatively more from fewer federal prosecutions. Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. This essay will reflect upon how state legal reforms have mellowed (but certainly not ended) federal enforcement.

기업범죄의 예방장치로서의 준법장치와 양형 - 미국 연방양형지침을 중심으로 –

준법장치(compliance program)는 기업범죄에 대응하는 여러 수단 중의 하나이다. 한국에서도 2000년대 이래 준법감시인, 준법지원인 등의 이름으로 준법장치가 법제도로 들어왔다. 최근 한국의 여러 학자들은 대체로, 미국의 연방양형지침을 인용하면서, 이를 더욱 활성화시키고 정착시키기 위해서 준법장치의 존재여부를 기업에 대한 형사처벌에서 양형에 반영하자고 주장한다. 본고는 이 주장이 타당한지를 검토한다. 이에 대한 대답을 얻기 위해 본고는 미국 연방양형지침의 전개과정을 살펴보았다. 미국에서 1991년에 도입된 연방 양형지침은 미국에서 준법장치의 통일과 확장에 결정적인 기여를 했다. 그런데 이 지침에 등장하는 준법장치는 2004년을 기점으로 질적인 변화를 겪었다. 즉, 종전의 준법장치가 법률주의적 접근이었다고 한다면, 2004년 이후는 기업문화적 접근이었다. 이런 전환의 배후에는 2000년대 초반의 대규모 기업비리 사건들도 있었지만, 그보다는 준법장치에 대한 많은 학술적 연구성과가 놓여 있었다. 이들 연구 결과물은 법률주의적 준법장치는 효과가 없으며 심지어 조직내 범죄를 조장할 수 있다는 것, 준법장치의 효과적 작동을 위해서는 문화적 접근을 해야 한다는 것, 준법장치는 친기업적이라기보다 친사회적(pro-social) 제도라는 것, 준법장치는 철저할수록 반드시 더 좋다고 할 수 없다는 것, 그럼에도 준법장치는 필요하며 특히 적어도 최악의 범죄를 막는 데 도움이 된다는 것 등을 보여준다. 이상의 논의에 따를 때, 준법장치의 존재여부를 양형에 반영하자는 것은 신중하게 주장되고 이해되어야 한다. 양형에 반영되는 준법장치는 문화적 접근에 근거한 것이어야 하며, 이 경우에도 신중하지 않으면 안 된다. 본고는 이런 점을 고려하여, 중대한 기업범죄에서 준법장치의 부재를 양형상의 가중요인으로서 고려하고, 중대하지 않은 기업범죄에서 준법장치의 존재를 양형상 감경요인으로 고려하는 방안을 조심스럽게 제안했다.

Race, Ethnicity, and Punishment for Federal Sex Offenses: Changing Composition in Child Pornography and Sex Abuse Cases and Temporal Disparity in Sentencing Over Time.

In response to several high-profile violent offenses against children over the past two decades, Congress has enacted several pieces of legislation aimed at increasing punishment for those convicted of federal sex offenses. Coinciding with these enhanced penalties was a demographic shift in the composition of those prosecuted for these offenses. In the federal criminal justice system, sex offenses fall into two main categories: child pornography and sexual abuse. The racial and ethnic makeup of individuals charged for federal sex offenses has significantly changed over the past 15 years. The current study utilizes federal sentencing data from the United States Sentencing Commission for the years 2006 to 2017 to explore the nature of punishment for these offenses over time. We also employ multivariate analyses to examine differences in punishment for the two types of offenses and employ disaggregated analyses by offense type to examine temporal change in racial/ethnic disparities in sentence length and departures from the federal sentencing guidelines. Findings demonstrate that convicted individuals who are Black and Hispanic are receiving harsher sentences over time net of controls for other key predictors such as age, sex, criminal history, and presumptive sentence length. Implications for how legislatively enhanced penalties and changing demographic makeup of those convicted for these offenses may have introduced extra-legal disparity into federal sentencing are further discussed.

Seeking Criminal Justice Clarity amid Historic Chaos

The remarkable events of 2020 have disrupted and altered all sorts of plans, and this issue of FSR covers some of the many varied criminal justice and sentencing echoes of the ongoing COVID-19 pandemic and urgent new calls for racial justice. The intense and dynamic topics that have come to define 2020 in the United States necessarily impact, and may even consume our thinking, about modern criminal justice systems generally and federal sentencing realities in particular. Included in this FSR issue are reports and data and commentary that predate spring shutdowns and summer protests and related developments; but these materials now carry distinctive meaning and even a new urgency in light of 2020 challenges. It is impossible to fully assess in short order the impact of massive societal changes on the federal sentencing system, but we are hopeful this FSR issue can provided added perspective to a rapidly changing world that still often seems hard to fully grasp.

The Evolving Role of the United States Sentencing Commission

This essay explores how the role of the United States Sentencing Commission has changed over time. It has gone through three different phases in terms of its role (either actual or perceived) in federal sentencing. The first phase covers the Commission at its inception, and the perceived role of the Commission that dominated then was that of a politically insulated, expert agency that would serve, essentially, as an independent policy maker. This vision of the Commission never materialized, but it is important to understand this model in order to appreciate why the Commission was set up the way it was. During the second and dominant phase, which lasted for roughly two decades, from 1986 until 2007, the Commission played a weak supporting role to the political actors who oversaw its work, with Congress largely controlling its output. This period was characterized by political battering by Congress. Given the political climate of the time, that meant increases in sentences, but little else, from the Commission. The third phase began in 2007 and continues today. The Commission is now seen as a respected supplier of data, and its judgments are given more deference. In a sense, this role combines the first two. The Commission is recognized for its expertise, but that expertise is valuable only insofar as the information it generates has political value. The essay concludes with ways the Commission’s design can be improved to give it greater political influence in setting sentencing policy.