United States Sentencing Commission Research Articles

The Evolving Role of the United States Sentencing Commission

The Evolving Role of the United States Sentencing Commission

365 Days > 366 Days: The (in)Ability to Earn Good Time Credit During the Time of COVID-19

Federal offenders sentenced to imprisonment for more than a year may earn “good time credit”. Offenders sentenced to 365 days are ineligible for this potential sentence reduction of up to 54 days a year. Using 2020 through 2022 data from the United States Sentencing Commission, we identified 3,765 federal offenders sentenced to either 365- or 366-days’ imprisonment. Independent variables included offender, legal, and case characteristics. Integrating the COVID-19 pandemic, we reviewed the percentage of compassionate release motions granted at the district level. A hierarchical logistic regression with random effects illustrated several measures connected to the ability to earn goodtime credit.

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.

Federal criminal sentencing: race-based disparate impact and differential treatment in judicial districts

Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.

The Noncitizen Penalty in U.S. Federal Courts: Differences in Punishment by Region of Citizenship

Previous literature has found that noncitizens are punished in U.S. federal courts more severely than U.S. citizens for offenses that are legally equivalent, though less is known about variation in the noncitizen effect depending on the defendant’s nation of citizenship. Using United States Sentencing Commission (USSC) federal courts data from 2018 to 2020, we analyze group differences in the noncitizen penalty across regions of national origin. We draw from literature on group threat and the focal concerns perspective to guide our expectations. We find that noncitizens from all regions except Asia and North/West Europe have higher odds of being incarcerated compared with U.S. citizens, and noncitizens from Mexico, Central and South America, the Caribbean, and Africa receive longer sentence lengths than U.S. citizens. Implications concerning the theoretical mechanisms relevant to the noncitizen penalty are discussed.

The United States Sentencing Commission, Compassionate Release, and Judicial Discretion

The Sentencing Commission is meeting for the first time in three years to promulgate guideline amendments. This amendment cycle promises to be among the Commission’s most consequential. Among its tasks, the agency must update USSG 1B1.13, the policy statement that governs reduction of sentence for “extraordinary and compelling reasons.” So-called “compassionate release” has taken on new significance since Congress amended the authorizing statute in the First Step Act of 2018. Because the Commission had no quorum at the time and for several years after it has been unable to amend the guideline to conform to changes made by the FSA. Creative litigation has transformed compassionate release from the last resort for incarcerated people who were aging, debilitated, or dying to one used for a variety of situations deemed extraordinary and compelling by federal courts. These include grants based on reasons ranging from vulnerability to COVID all the way to the injustice of continued incarceration of people serving sentences the FSA lowered but did not make retroactive. Confronting the Commission is the question of whether and to what extent it might cabin the discretion judges have been exercising to recognize various grounds for compassionate release, including intervening changes in the law that make the sentence inequitable. In this article, the author traces the history of compassionate release, discusses the transformation of its use since passage of the FSA, explores the various proposals the Commission has presented for comment, and presents the choices through the lens of one incarcerated person’s experience.

Examining the Sentencing of American Indian Women in U.S. Federal District Courts

Prior sentencing research has examined the treatment of White, Black, and Hispanic defendants; however, little attention has been paid towards other racial/ethnic groups, like American Indian defendants. Moreover, a majority of sentencing research has focused men’s outcomes, disregarding the treatment and outcomes of women. Therefore, this paper examines the outcomes of American Indian women in federal district courts using United States Sentencing Commission (USSC) data from FY2015 to FY2019. We situate our research within an intersectional framework and use the chivalry, evil women, and focal concerns perspectives to understand the sentencing outcomes of American Indian women. Our results indicate that American Indian women are similarly disadvantaged at the incarceration, and sentence length decisions as other racial/ethnic groups.

Confirming United States Sentencing Commission Commissioners (June 9, 2022)

Confirming United States Sentencing Commission Commissioners (June 9, 2022)

“There’s Something Happening Here”

This article examines the recent increase in the number of federal alternative-to-incarceration programs (ATIs), and how such programs could be aided considerably by the newly constituted United States Sentencing Commission. The authors observe that precisely because the federal system has been slower to embrace ATIs, this decarceration effort may have at least partially avoided the pendulum-like dynamic that repeatedly frustrates the criminal justice reform movement in state and local jurisdictions. Drawing on source material from a recent series of panel discussions on federal decarceration, the authors suggest that ATIs can be scaled to great, even transformative effect in the federal system. They conclude, however, that this will take equally great measures of conviction and culture change.

Judicial diversity and sentencing disparity across U.S. District Courts

PurposeMuch of the prior literature examining the impact of judge race and sex on case-level sentencing outcomes remain mixed. There is a lack of research investigating how the composition of the judiciary influences sentencing. The current study attempts to fill this gap and examines the influence of the race, sex, and political composition of U.S. District Courts for two offense categories. MethodsUsing data from the United States Sentencing Commission Monitoring of Federal Criminal Sentences and the Federal Judicial Center Biographical Directory, district-level sentencing outcomes for drug and economic offenders processed between October 1, 2007 through September 20, 2016 were analyzed. ResultsResults indicate that judicial racial composition influences the percentage of economic cases sentenced to prison and average sentence length for both economic and drug cases, but in opposite directions. Political composition impacted the percentage of economic cases sentenced to prison while gender composition was not found to be a significant predictor. ConclusionsThese findings highlight that in order to obtain a clearer picture of how judicial racial composition impacts sentencing, it is necessary to examine offense categories separately and beyond case-level outcomes.

The Importance of a Racially Diverse Sentencing Commission

2022 marks an important year for racial diversity in our criminal justice system. President Biden has just nominated the first black woman, Judge Ketanji Brown Jackson, to serve on the U.S. Supreme Court, and the Senate appears poised to add additional members to the United States Sentencing Commission. The Biden Administration has made clear its commitment to diversity in nominating candidates to the federal bench, the U.S. Attorney’s Office, and the U.S. Marshal Service. We write to explain the profound importance of extending this commitment to the Administration’s nominations to the Sentencing Commission. The Commission has significant influence over the federal judiciary. Each day, the Commission’s published recommendations affect the sentencing decisions made by federal judges, decisions that affect people’s basic freedom, mental and physical health, and physical safety. Meaningful racial and ethnic diversity on the Commission is critical to preserve the public’s faith in the Commission’s recommendations. The racial and ethnic makeup of the Commission matters in part because the predominant groups being sentenced by the federal judges who follow the Commission’s recommendations are people of color. Given that people of color have made up the vast majority of those affected by the Commission’s recommendations in recent years, it is particularly important that the Commission meaningfully reflect the diversity of the groups most affected by its guidance. Meaningful diversity will both positively impact the public’s trust in this body and the substantive recommendations it publishes. Americans deserve a Commission that provides recommendations that are both substantively fair and also carry the appearance of fairness. It is thus critical that the makeup of the Commission reflect the populations most affected by its guidance.

Women Lifers: What the United States Sentencing Commission Data Tell Us about Women Eligible for and Sentenced to Life Without Parole

ABSTRACT The current study builds on recent research assessing the decision to impose life imprisonment without the possibility of parole (LWOP), focusing on females convicted in US District Courts. Using USSC data from 2010 to 2017 and an intersectional approach, we described the characteristics of life-eligible and life-sentenced women and examined the factors that predict life eligibility among females and males . Black women faced higher odds of life eligibility than White or Hispanic women and life experiences and case processing factors affected life eligibility differently for women and men. These results highlight the importance of intersectionality for understanding gendered sentencing pathways.

Within-race variations in sentencing outcomes: Nationality and punishment among Asians in United States federal courts

There is robust evidence that Asians are not treated differently from Whites and receive greater leniency than Blacks and Hispanics in criminal punishment. Some research findings even suggest that Asians receive the most favorable sentencing outcomes among all racial/ethnic groups. This line of research, however, has not paid attention to Asian nationality groups. Particularly, it is unclear whether there is within-race variation among offenders from different Asian countries. Using the data compiled by the United States Sentencing Commission to examine whether and how an Asian's nationality affects criminal punishment, this study focuses on sentences imposed on offenders who are Chinese, Filipino, Indian, Korean, Pakistani, and Vietnamese nationals. Results from logistic, ordinary least squares, and Tobit regression analyses indicate that with legal and extralegal factors held constant, Asians of different nationalities face varying odds of incarceration or downward departures, and they receive dissimilar sentence lengths.

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.

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.

PULL THE TRIGGER: United States v. Corner and Judicial Discretion in Drug Sentencing Under the First Step Act

ABSTRACT There are drug offenders sentenced under the outdated 100-to-1 powder-to-crack disparity. The ratio represents the amount of powder cocaine versus crack cocaine necessary to trigger the federal mandatory-minimum sentence. The First Step Act of 2018 (“FSA ’18”) makes the Fair Sentencing Act of 2010 (“FSA ’10”) guidelines retroactive. Under FSA ’10, the ratio is 18-to-1. FSA ‘18 provides retroactive relief for drug offenders who did not benefit from FSA ’10. Sentencing reduction under FSA ‘18 is important because the crack-cocaine disparity has had a negative impact on the African American community due to the disproportionate application to Black offenders. Sentencing before the Fair Sentencing Act was widely criticized as racially motivated and lacking empirical support. The progressive legislation is ineffective without proper exercise of judicial discretion. The author uses legislation, scholarly articles analyzing the legislation and its impacts, United States Sentencing Commission (“USSC”) reports, an informal interview with a prior offender, federal court cases, articles by reform advocates, and the appellate court decision in United States v. Corner. The legislation, USSC reports, and scholarly articles indicate lack of empirical support for the 100-to-1 rule. USSC reports continuously advocated for a decreased ratio and support the theory that the disparity is racially motivated. The prior-offender interview provides a first-hand account of the application of the outdated disparity. The reform-advocate articles support the conclusion that the disparity is a grave injustice that was racially motivated. All research indicates the importance of proper application of FSA ’18. The author concludes that the appellate court came to the correct conclusion in determining the level of judicial discretion in drug sentencing. In United States v. Corner, the Seventh Circuit Court of Appeals interpreted FSA ’18 and the discretion vested in district court judges considering sentence reduction. The court concluded that courts must determine offender eligibility and impose a new sentence under the new guidelines. The court held that district court judges maintain discretion to grant the sentence reduction.

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.

JUSTFAIR: Judicial System Transparency through Federal Archive Inferred Records.

In the United States, the public has a constitutional right to access criminal trial proceedings. In practice, it can be difficult or impossible for the public to exercise this right. We present JUSTFAIR: Judicial System Transparency through Federal Archive Inferred Records, a database of criminal sentencing decisions made in federal district courts. We have compiled this data set from public sources including the United States Sentencing Commission, the Federal Judicial Center, the Public Access to Court Electronic Records system, and Wikipedia. With nearly 600,000 records from the years 2001—2018, JUSTFAIR is the first large scale, free, public database that links information about defendants and their demographic characteristics with information about their federal crimes, their sentences, and, crucially, the identity of the sentencing judge.

Financial Dependents and Sentencing Outcomes in Federal District Courts: Variation by Race, Ethnicity, and Sex

A voluminous literature has detailed disparities in punishment related to extra-legal characteristics such as race, ethnicity, and sex. However, less research has investigated the specific contexts and conditions under which disparities in punishment emerge. Specifically, limited research to date has examined whether family characteristics influence sentencing both directly, and in interaction with race, ethnicity, and sex. The current study investigates this question using data on federal criminal sentences from the United States Sentencing Commission for fiscal years 2015–2017. Findings demonstrate that providing support for dependents generally has a positive association with the likelihood of being incarcerated and overall sentence length. Moreover, the positive association between support for dependents and punishment severity is concentrated among Black male and Hispanic male defendants. Among minority females and White defendants, having dependents has either a negative or null association with sentencing outcomes. Findings are discussed in the context of contemporary theoretical perspectives of punishment.

The Evolving Role of the United States Sentencing Commission

This essay explores the way in which the United States Sentencing Commission’s policymaking role has changed over time. The agency has gone through three different phases in terms of its role (either actual or perceived) in federal sentencing. First was the role envisioned for the Commission at its inception, which was an expert agency that would be politically insulated. This role essentially saw the Commission as an independent policymaker. While this vision of the Commission never materialized, it is important to understand this conception of the Commission to appreciate why it was set up the way it was. The second and dominant phase, which lasted roughly two decades, from 1986 until 2007, is where the Commission played a weak supporting role to the political actors who oversaw its work, with Congress largely controlling its output. This was a period characterized by politically battering by Congress. Given the political climate of the time, that meant increases in sentences but little else from the Commission. The third phase is from 2007 until today. The Commission’s role now is as a respected supplier of data and it is given more deference in its judgments. In a sense, this role combines the first two. The Commission is recognized for its expertise, but that expertise is only valuable insofar as the information it generates has political value. In a time where there is bipartisan support for rolling back some of the excesses in sentencing, that information has value where it did not before. But the Commission is still on a relatively short leash in terms of how much it can accomplish. If we want to make the most of this current role, I think there are some things we can do to improve it, and this essay offers some suggestions.