Federal Judges Get “Soft” At Sentencing
October 19, 2016 (Fault Lines) — “Sentencing reform” is all the rage. To their great credit, criminal defense lawyers (CDLs) are at the forefront of the movement. The federal sentencing system is held up as the poster monster of this reform effort. But, the truth is that the slope of the sentencing curve is, and has been for some years, markedly downward.
I refer in this post to United States Sentencing Commission’s Overview of Federal Criminal Cases (June 2016). In the following, and although I give bird’s eye view of all cases, you will see that I concentrate on drug crimes. That is because drug crimes comprise the most common federal crime* and, for the first time, meth cases are the most frequent of all types of drug crimes. Id.at 6.
Initially, federal criminal cases writ large are decreasing at a very significant rate. As the Commission has observed:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014. Since fiscal year 2011, the year in which the largest number of offenders were sentenced, the number of offenders sentenced in the federal courts has fallen steadily, for a total decrease of 17.6 percent. In fiscal year 2015, fewer cases were reported for virtually every type of offense than in the prior fiscal year.
Id. at 1.**
For all crimes, draconian sentences are less frequent. That is:
Overall, 71.3 percent of offenders received a sentence of less than five years, 16.5 percent of offenders received a sentence of five years or longer but less than ten years, and 12.1 percent received a sentence of ten years or longer. In fiscal year 2015, 144 federal offenders were sentenced to life imprisonment while one offender was sentenced to death.
Id. at 5.
For blacks, who comprise about 80 percent (id. at p. 7) of crack cocaine offenders, the “largest reduction in average sentence occurred in cases involving crack cocaine, where the average length of imprisonment decreased to 84 months (with a median sentence of 65 months), which was a 9.7 percent [decrease] from fiscal year 2014.” Id. It is extremely important to note that the “average sentence in crack cocaine cases has decreased steadily each year, from a high of 129 month in fiscal year 2007.” Id.
It is also very important to note that, but for the high criminal history scores seen in crack cocaine cases, the average and median sentence length of crack offenders would likely have been significantly lower. Consider the following:
Overall, crack cocaine offenders continue to have, on average, a more serious criminal history than any other category of drug offender. Crack cocaine offenders were assigned to the most serious criminal history category (CHC VI) in 28.8 percent of all crack cocaine cases. In contrast, powder cocaine offenders were assigned to CHC VI in only 8.9 percent of cases. By comparison, 17.1 percent of heroin offenders were assigned to CHC VI and 14.2 percent of methamphetamine offenders were assigned to CHC VI. Offenders convicted of marijuana offenses generally had the least serious criminal histories, with 59.5 percent assigned to CHC I and only 3.8 percent to CHC VI.
Of equal importance are the tens of thousands of inmates who saw reductions in their sentences because of the 2014 amendment that made changes in the Guidelines’ drug table retroactive. Thus:
In 2015, the Commission received documentation on 24,743 resentencings and other modifications of sentence, more than in any prior fiscal year. The most frequently reported reason was the modification of a term of imprisonment due to the retroactive application of an amendment to the sentencing guidelines (21,576 cases; 87.2% of all cases). Almost all of the cases in which this reason was cited involved the retroactive application of the 2014 drug guidelines amendment.
Id. at 1l.***
Let me end this brief post with the following observation. Federal judges are becoming “soft” on sentencing. All in all, that is a good thing—requiring judges to think deeply about their sentences rather than relying only upon the Guidelines makes the job harder but the result better. And that brings to mind Alexander Pope, the English poet, known for his satirical verse:
Finally, CDLs deserve an enormous amount of credit for the sea change that is occurring during federal sentencings even though it gags me, albeit only slightly, to make this admission. Now, I’m off to lunch.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*The trope that the feds prosecute mostly law hanging fruit—like simple drug possession—does not seem to be borne out by the data. “Most of the 22,631 drug cases involved the manufacture, sale, or transportation of a drug, while 2,277 of those cases involved the simple possession of a drug.” Id. at 6.
**Sadly, however, meth and heroin offenses are increasing. Id. at 6.
***The District of Nebraska handled over 700 Amendment 782 cases. This was an enormous burden on probation officers, prosecutors and CDLs. To their everlasting credit, they pulled together and in the huge majority of cases there were no disputes. I wish to personally thank all of them! As I have said before, I consider myself very lucky to have such dedicated public servants appear before me. In particular, I thank Supervisory AUSA John Higgins, Federal Public Defender David Stickman, and Supervisory US Probation Officer Kelly Nelson.
**** The aphorism recognized a long tradition in English common law that forbade deliberating jurors’ eating or drinking before announcing their verdict which typically included the sentence if the person before the bench was found guilty. We federal judges (and me in particular) should remember Pope’s acerbic observation.