United States Sentencing Commission Research Articles

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.

The Bureaucratic Takeover of Criminal Sentencing

Criminal sentencing in the federal courts was transformed by the Sentencing Reform Act of 1984, which launched a bureaucratic takeover of sentencing. It was an extraordinary transfer of authority from federal trial judges to the new United States Sentencing Commission, a centralized and essentially non-judicial bureaucracy. Liberals and conservatives in Congress joined to do this out of mistrust, for very different reasons, of federal judges. The Commission’s sentencing Guidelines - misnamed insofar as they were at least for a time compulsory - still loom powerfully over federal sentencing, with a distinct tilt toward severity. Although the Supreme Court in 2005 cut back the compulsory force of the Guidelines, the “gravitational pull” of the Guidelines is such that most federal sentences still conform to the Guidelines. Moreover, pressure to maintain or increase bureaucratic control over sentencing is likely to persist. This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing. When individual figures of authority, like judges, are mistrusted, there is a tendency to place or misplace faith in bureaucracy, with its real or imagined attributes of regularity, rationality, and impartiality. Those on the liberal or progressive Left who supported the Reform Act and the ensuing Guidelines regime might not have much reason to be pleased with the results. Those on the Right who supported the change in order to stiffen federal sentencing did, at least for a time, achieve their goal.

The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction

While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted. As a result, the federal system continues to single out drug offenses for harsh treatment at the bail stage and the sentencing stage—the front end and back end of the federal mass incarceration crisis. In this paper, we argue that federal judges have a critical role to play in future federal drug law reform in light of Congress’ long-standing failures to meaningfully change the laws. At the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention and giving little weight to the Bail Reform Act’s presumption of detention. Data shows that the statutory drug presumption is overbroad and does a poor job of determining who is a risk of flight or a danger to the community. At the back end, judges should issue categorical policy disagreements with the drug sentencing guidelines and the career offender sentencing guideline using the Supreme Court’s blueprint in Kimbrough v. United States. Judges should issue sentences below these guidelines because they are not based on empirical evidence, over-punish drug offenses, and result in racial disparities. At both ends, judges should rest their decisions on the evidence that the drug presumption, the drug sentencing guidelines, and the career offender sentencing guideline are flawed. While judicial action is not a cure for Congressional inaction, it would send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

Fast-Tracking Justice: An Examination of the Role of Gender in the Application of Federal Early Disposition Decisions and Other Departure Outcomes for Immigration Offenses

In light of allegations that the federal use of early disposition (§5K3) departures circumvents efforts at equality and transparency, this study examines the role of gender in the application of §5K3 outcomes for immigration violations. The current study uses data from the United States Sentencing Commission’s Monitoring of Federal Sentences from 2006 to 2017 to examine the effects of gender across departure decisions for immigration offenders with an emphasis on §5K3 outcomes, variability in §5K3 outcomes among women, and differential predictors of §5K3 outcomes between men and women. The results of this study conclude that female leniency does extend to immigration violations but does not apply to early disposition odds. The odds of receiving a §5K3 outcome vary among women according to race, citizenship status, and motherhood, among others. The predictors of §5K3 outcomes also vary between men and women, suggesting that decision makers may consider different factors for men and women when applying departures.

Assessing Sentencing Disparities among American Indians within the Eighth, Ninth, and Tenth Federal Circuit Courts

ABSTRACT In a fair and equitable criminal justice system, one’s race should not influence their sentencing outcomes. Research studies conducted in the United States often report evidence that ethnic minorities are at an increased risk for receiving more punitive punishments at the time of their sentencing. The existing scholarship, however, has largely focused on assessing differences between Black and Hispanic defendants in relation to White defendants. There has been far less academic exploration of potential sentencing disparities among other less populated ethnic groups, including American Indians. To address this gap in knowledge, we use data collected from the United States Sentencing Commission to test whether American Indians receive different sentencing outcomes when compared to other racial groups. Our study findings indicate that American Indian defendants are more likely to be sentenced to prison than White, Black, and Hispanic defendants, but among those incarcerated, American Indians received similar sentence lengths to Whites.

A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography. Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes. The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program). The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be. Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist – in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants. Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission. Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency

The United States criminal justice system is the most punitive on earth. The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults. Most of the correctional population comprises offenders who are on parole or probation. The financial burden this imposes on the community is prohibitive. Further, a high portion of offenders who are on parole or probation offend during the period of the sanction. This Article proposes an overdue solution to the crisis which exists in relation to the imposition of criminal sanctions. The solution is especially timely given that there is now a considerable consensus emerging among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and improve their effectiveness. Moreover, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences which are alternatives to incarceration. With little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances. This Article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions. Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over the every move of each offender. The proposal was dubbed “cop-a-con”. This would nearly guarantee that offenders did not re-offend, while eliminating the adverse consequences of prison. This proposal was manifestly unviable due to its excessive costs. Technological advances now make the concept achievable in a cost-effective manner. It is now possible to monitor the locations and actions of individuals in live time and to detect crime as it is in the process of being committed. Adapted properly to the criminal justice system, technology has the potential to totally reshape the nature and efficacy of criminal sanctions. The sanctions which are currently utilized to deal with the most serious offenders, namely imprisonment, probation and parole can be replaced with technological monitoring which can more efficiently, effectively and humanely achieve the appropriate objectives of sentencing. Technological disruption in the criminal justice sector is not only desirable, it is imperative. Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation. The sanction suggested in the Article (“the monitoring sanction”) has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems, while enhancing public safety.

Racial Disparities in Federal Sentencing Outcomes: Clarifying the Role of Criminal History

Racial and ethnic sentencing disparities are frequently conditioned by offender and case characteristics (e.g., gender, crime type). Offenders’ criminal history is a potentially important conditioning factor, yet this issue has only been addressed by a small body of research. Moreover, no study has examined this potential conditioning effect among Asian or Native American offenders, and prior research has typically adopted a limited theoretical approach for explaining why criminal history might condition racial disparities. The present study addresses these shortcomings in an analysis of United States Sentencing Commission data for fiscal years 2010-2012. Results indicate that race and ethnicity effects are conditioned by criminal history in important ways. Implications for theory, research, and practice are discussed.

Switzerland Halts War on Drugs, Cuts Deaths

Switzerland Halts War on Drugs, Cuts Deaths

How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration. The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines. The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation. The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants. Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.

Testimony Before the U.S. Sentencing Commission on the Tribal Law and Order Act

Under longstanding policy, the U.S. Sentencing Commission takes the position that tribal court convictions ought not be counted for purposes of evaluating a convicted defendant's criminal history. Because in some cases this policy underestimates a defendant's criminal history, it undermines the utilitarian and retributive purposes of federal sentencing. The Tribal Law and Order Act, currently pending in Congress and supported by the President, should cause the United States Sentencing Commission to reconsider its position on tribal convictions. The Act would provide clear federal authorization for tribal court felony sentences of up to three years per offense as long as tribal governments provide counsel to indigent defendants. I stop short of recommending a particular outcome because I believe that the Commission ought to consider the views of tribal governments before deciding. However, if the Act becomes law, the Commission should take this opportunity to re-open the question and consult with tribes about the future of this provision.

An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5)

Review Article| October 01 2017 An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5) United States Sentencing Commission United States Sentencing Commission Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2017) 30 (1): 34–57. https://doi.org/10.1525/fsr.2017.30.1.34 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 United States Sentencing Commission; An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5). Federal Sentencing Reporter 1 October 2017; 30 (1): 34–57. doi: https://doi.org/10.1525/fsr.2017.30.1.34 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. © 2017 Vera Institute of Justice2017 Article PDF first page preview Close Modal You do not currently have access to this content.

Citizenship, Legal Status, and Federal Sentencing Outcomes: Examining the Moderating Effects of Age, Gender, and Race/Ethnicity

ABSTRACTResearch has yet to fully investigate whether the effects of citizenship and legal status are moderated by age, gender, and race/ethnicity. This is a significant oversight because negative stereotypes of young, male, black, and Hispanic offenders may intensify overall negative perceptions for noncitizen and undocumented immigrant offenders. Using data from the United States Sentencing Commission for fiscal years 2006–2008, we investigate whether the effects of citizenship and legal status on sentencing outcomes are moderated by age, gender, and race/ethnicity. The results indicate that the effects of citizenship and legal status on incarceration decision, but not sentence length decision, are moderated by age, gender, and race/ethnicity. Further, young Hispanic male noncitizen and undocumented immigrant offenders are among the groups that have the greatest odds of being sentenced to prison. We discuss the implications of these findings and conclude with a discussion of future research.

Examining Federal Criminal Sentencing of White-Collar and Common Property Offenders: The Case of Embezzlement and Larceny

This study addresses the question of whether those charged with embezzlement—an offense characterized as a white-collar crime—are punished leniently, severely, or approximately the same compared with similarly situated larceny offenders—an offense characterized as a non–white-collar property crime—in federal criminal proceedings. To assess this question, the current study uses propensity score matching techniques to create a comparable sample of embezzlement and larceny offenders. Using data from the United States Sentencing Commission on individuals sentenced from years 2005 to 2010, the current study finds embezzlement offenders are more likely to be sentenced to incarceration relative to larceny offenders. In addition, the findings suggest that embezzlement offenders did not have a significantly higher likelihood of receiving a sentence of incarceration in the years following the onset of the Global Financial Crisis.

One Day Makes All the Difference: Denying Federal Offenders Access to “Good Time” Through Sentencing

The race/sentencing literature has focused on imprisonment and sentence length decisions to the exclusion of other relevant outcomes. The present study extends this research by examining a previously overlooked decision—that is, the decision to deny federal offenders access to “good time” through sentencing. The current study uses data from the United States Sentencing Commission (USSC; fiscal years [FYs] 2010-2012) to examine the potential influence of race and ethnicity on this previously unstudied outcome. Results indicate that relative to White offenders, Latino and Native American offenders are more likely to be denied good-time access, while Asian offenders are less likely to be denied access. African American offenders are treated no differently than White offenders. Implications for research and practice are discussed in detail.

Assessing the influence of the Columbine shooting on federal sentencing outcomes

School shootings are not a new phenomenon in the United States or internationally. In comparison to other acts of violence experienced by youth, such tragedies are uncommon but garner extensive media attention. The Columbine High School shooting received more attention across a broader range of issues than any other school shooting, with only the Sandy Hook tragedy rivaling it for media attention. In the aftermath of the Columbine shooting, public sentiment regarding violence in schools became a central point of contention that bred fear and panic. Given the embeddedness of judges within the larger community context and the effects of community characteristics on sentencing outcomes, we wondered if the Columbine shooting – via moral panic and community upheaval – might have had an impact on judges imposing criminal sentences. To assess the effect of the Columbine shooting on judicial decision-making outcomes, the current study uses United States Sentencing Commission data from 1998 through 2001. In doing so, it contributes to the extant literature concerning the embeddedness of judges within communities and answers recent call for more research on the temporal context of sentencing disparities.

The Use and Impact of Fast-Track Departures

Fast-track programs allow prosecutors in authorized jurisdictions to expedite case processing for offenders charged with immigration violations. We explore whether disparities from fast-track usage exist by utilizing multilevel modeling techniques to analyze 2008 United States Sentencing Commission data on the federal sentencing of illegal entry defendants. Results indicate that the use of fast-track programs, the amount of sentence reduction applied in fast-track cases, and the overall sentence length is differentially impacted by various legal, extralegal, case processing, and district-level variables. These findings suggest some support for previous theoretical explanations for decision-making, but also indicate that these processes may differ slightly in the context of fast-track programs.

Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for nonviolent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies — pardons and judicial expungements — are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.

The Importance of Statements of Reasons in Guideline Sentencing

The goals of the Sentencing Reform Act of 1984 are to reduce unwarranted sentencing disparity and provide truth in sentencing. One of the essential elements in achieving these goals is the requirement that judges state their for a sentence and report that statement to the United States Sentencing Commission. See U.S.C. ?3553(c) and 28 U.S.C. ?994(w). It is simply impossible to determine whether similarly situated defendants were sen tenced similarly without knowing what factual find ings were made and what guidelines were applied or why a departure from the guidelines was made. If these reasons are not stated by the court at the time of sentencing the defendant may not be able to adequately identify any basis for appeal, the court of appeals has inadequate information to review, and the Sentencing Commission cannot determine how the guidelines are functioning and whether they need to be modified.

The calculus of the record: Criminal history in the making of US Federal Sentencing Guidelines

The Federal Sentencing Guidelines, developed by the United States Sentencing Commission in the 1980s, appear to exemplify the turn from individualization toward aggregated, rationalized risk management that ostensibly became hegemonic in the late 20th century. In this article, we challenge that presumption by building on Harcourt’s (2007) argument that penal actuarialism emerged as part of the individualization project rather than as a repudiation of it. We trace how ‘criminal history’ came to be the primary mode for capturing defendant characteristics in the Guidelines formula, and delineate how time became the unit of quantification to transform criminal history into ordinal measures of current culpability. We draw three lessons from this case study: about the durability of old practices and logics; about how the individual penal subject lives on in sentencing regimes like the federal Guidelines system; and about the metrics of time and history as ways of knowing the juridical subject.