Mimesis Law
20 September 2019

Doing Time on the Installment Plan—Federal Criminal History Scores & The CDL

September 7, 2016 (Fault Lines) — The United States Sentencing Commission has recently published a study comparing recidivism rates and criminal history categories under the Sentencing Guidelines.  Recidivism Among Federal Offenders: A Comprehensive Overview, United States Sentencing Commission (March, 2016). It is extremely well-written and thankfully relatively short.

The offenders studied in this project were 25,431 federal offenders who:

(1) were citizens;

(2) re-entered the community during 2005 after discharging their sentence of incarceration or by commencing a term of probation in 2005;

(3) have valid FBI numbers which could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records);

(4) were not reported dead, escaped, or detained, and

(5) had a pre-sentence investigation report that was submitted to the Commission with a federal sentence that was not vacated.

In other words, the database was large. It is worth noting that nearly 42 percent of the cases studied involved those who were convicted of drug crimes.

Most importantly, the study was a serious undertaking to determine, among other things, recidivism rates for federal offenders and the correlation, if any, between criminal history score and recidivism.  In short, for those who complain that the Guidelines lack an empirical foundation, this study proves the contrary for the horizontal axis (criminal history) of the sentencing grid. The study has or should have important implications for criminal defense lawyers (CDLs).

The key findings of the Commission’s study are:

  • Over an eight year follow-up period, almost one-half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions.
  • Almost one-third (31.7%) of the offenders were also reconvicted, and one-quarter (24.6%) of the offenders were reincarcerated over the same study period.
  • Offenders released from incarceration in 2005 had a rearrest rate of 52.5percent, while offenders released directly to a probationary sentence had a rearrest rate of 35.1 percent.
  • Of those offenders who recidivated, most did so within the first two years of the eight year follow-up period. The median time to rearrest was 21months.
  • About one-fourth of those rearrested had an assault rearrest as their most serious charge over the study period. Other common most serious offenses were drug trafficking, larceny, and public order offenses.
  • A federal offender’s criminal history was closely correlated with recidivism rates. Rearrest rates range from 30.2 percent for offenders with zero total criminal history points to 80.1 percent of offenders in the highest Criminal History Category, VI.* Each additional criminal history point was generally associated with a greater likelihood of recidivism.
  • A federal offender’s age at time of release into the community was also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate, 67.6 percent, while offenders over sixty years old at the time of release had a recidivism rate of 16.0 percent.

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Since Fault Lines is devoted in large part to criminal defense practitioners, I will highlight two points from this study that a CDL can use to help his or her client.** I turn to those two points next.

First, except for firearms offenses, ask the judge to ignore the total offense level if the judge is (like me) most interested in protecting the public from future crimes of the defendant.  This is very, very important.

The Commission’s study found:

The Commission did not find a strong correlation between the severity of the offender’s federal offense conduct, as determined under the sentencing guidelines, and future recidivism. Under the guidelines, the seriousness of an offender’s federal crime is measured by a final offense level score ranging from one to 43. There is not a strong correspondence between final offense level and recidivism. For example, offenders whose federal offense was assigned to the lowest final offense levels (one through eight) had a rearrest rate of 45.2 percent, almost the same rearrest rate as those assigned the highest final offense levels of 31 through 43 (45.7%). It should be noted, however, that the offense levels in the federal sentencing guidelines were intended to reflect multiple purposes of punishment, including just punishment and general deterrence (which are unrelated to offender recidivism).

At p. 20 of the Study (emphasis added by Kopf).

Second, age matters, and it matters a lot when a judge is concerned with recidivism. That is, this study confirms that offenders do “age out of crime.”  As the Commission concludes, “Studies have repeatedly shown that older offenders at sentencing are at lower risk for reoffending, and the Commission’s research confirms these findings.” Study at p. 23 (footnote omitted).

Here is a graphic representation from page 23 of the study:

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In sum, I urge CDLs to carefully examine this recidivism study.  You can be sure that many judges and prosecutors have already done so.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*In the federal system, criminal history is scored by the number of points for prior convictions and then grouped into six categories.

**I do not mean to suggest that there are only two things that CDLs might find helpful in this study.  In the text, I highlight only the two points that seem to have overarching significance to the CDL.

10 Comments on this post.

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  • Mark W. Bennett
    7 September 2016 at 9:36 am - Reply

    Another great post by Judge Kopf!!! The study is on my “To Read” list so I appreciate your post. In my experience is seems that recidivism is likely related to two factors: 1) returning to the same “playground” and 2) and closely related, hooking up with the same “friends” they associated with in the first place. Your thoughts please?

    mark

    • Anon.
      7 September 2016 at 11:11 am - Reply

      Yeah, I agree, Judge Kopf always posts thought provoking stuff– and pretty practical stuff, too.

      But the results of this study, 80% of category six offenders reoffend, etc…
      Seems kind of obvious doesn’t it?

      I mean, someone who has a repeated history of committing crimes, it seems intrinsic to their personality and overall character. It shouldn’t surprise us that that class of defendants at a very high risk to go back and do it again. Pretty predictable isn’t it?

      Returning to the same playground and the same friends certainly doesn’t help the situation, but isn’t there more at work here?

      Maybe, some folks are just intrinsically bad. No cure for that.

      I think as a CDL one needs to be able to show that their client doesn’t fit that category. That is, the client is not intrinsically bad category. Or as my father would say the NFG type. Hard to do with a category VI criminal history client, but a good CDL is always up to the impossible challenge.

      *On an aside, I notice that this is one of Judge Kopf’s “statistics” post where he doesn’t make reference to this thing called “R squared.” I took pains to look that expression up on Wikipedia. No help there, just a bunch of mathematical formulas that I haven’t seen since high school physics. I think I understand the general concept. I think. I’ve always been too embarrassed to ask, but maybe someone can explain it in simple English.

      • Richard G. Kopf
        7 September 2016 at 11:56 am - Reply

        Anon,

        Substitute the words “coefficient of reproducibility” for “r squared.” Both notions basically ask: If you did the same analysis on similar data over and over and over what would happen? Would you get a wide variation in results after each analysis? Or would the results remain roughly the same?

        The disciplines vary about acceptable coefficients of reproducibility. In the social sciences, you prefer .95 but .90 is sometimes acceptable. Importantly, there are sometimes when you see a study with a coefficient that is much less robust. That doesn’t mean the study is useless. It does mean that there is a variable or that there are variables that have not been accounted for.

        Please understand that this could all be a lie.

        I am no statistician. Most of what I know about statistics was taught to me by my brilliant client and his expert over about a 10 year period of time in several pieces of litigation where my general responsibility was to kick the crap out of environmentalists and their experts. That required knowing the relevant statistical formulations used in the field of hydrology and biology.

        Interestingly, my son, the fish biologist in Australia, teaches statistics but is self-taught as well. Anymore, most everyone who is a serious researcher buys statistical programs from SAS (https://www.sas.com/en_us/company-information.html). Thus, you don’t need to understand statistics at a high level to do a statistical analysis using SAS software. At least that’s what Boyo tells me.

        All the best.

        RGK

        • Anon.
          7 September 2016 at 12:38 pm - Reply

          Thank you. Very helpful (and kind of interesting as well)

          My son is still in high school, but he helps me out a lot with all the computer and I-pad stuff.

    • Richard G. Kopf
      7 September 2016 at 12:02 pm - Reply

      Mark,

      PCRA tries to get at those two aspects. You are certainly right that 1) returning to the same “playground” and 2) and closely related, hooking up with the same “friends” they associated with in the first place are indicative of a likelihood of reoffense. All the best.

      Rich

      • shg
        7 September 2016 at 12:08 pm - Reply

        Seems to me that spending time in prison is the best indicator of re-offending. What the hell are they teaching them in those darn FCIs?

        • Richard G. Kopf
          7 September 2016 at 1:03 pm - Reply

          SHG,

          Table manners. All the best.

          RGK

          • shg
            7 September 2016 at 1:15 pm -

            That’s so untrue. I’ve eaten with them, and they never know which fork to use.

  • Past Performance Is A Good Indicator? | Simple Justice
    7 September 2016 at 9:42 am - Reply

    […] Fault Lines, Nebraska Senior District Judge Richard G. Kopf notes that there is a proven correlation between […]

  • Mark Bennett
    15 September 2016 at 3:52 pm - Reply

    What role should likely recidivism play in determining a sentence ?