By The United States Sentencing Commission

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.  The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system.  In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker.

Washington, DC: United States Sentencing Commission, 2020. 100p.

By Vera M. Kachnowski and Amanda Russell

 In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses—§2L1.2 (Unlawfully Entering or Remaining in the United States). The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades. This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years. The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty. After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Washington, DC: United States Sentencing Commission, 2022. 38p.

By Sarah W. Craun and Alyssa Purdy

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes. While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced.  In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013. Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Washington, DC: United States Sentencing Commission,  2022. 40p.

By April A. Christine,  Courtney R. Semisch,  Charles S. Ray, and Amanda Russell,

This comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed. The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery. This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders

Washington, DC: United States Sentencing Commission, 2022. 60p.

By Chad M. Topaz, Shaoyang Ning, Maria-Veronica Ciocanel & Shawn Bushway

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.

Published in: Humanities and Social Sciences Communications, Volume 10, Article Number 366 (2023). doi: 10.1057/s41599-023-018By Bugmy 9-5.

By Bruce A. Green and Rebecca Roiphe

There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former United States Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk that the Attorney General will undermine the interests of justice by doing the bidding of the administration, and Berman ignores the possibility that U.S. Attorneys will act on their own inappropriate political bias.

We propose a system of checks and balances in which prosecuting a politically sensitive case would require approval from both the Attorney General and the U.S. Attorney. Recognizing Berman’s argument that the greatest threat of politicization comes from the Attorney General, we offer two additional proposals to help preserve the independence and integrity of U.S. Attorneys. First, Congress should clarify that the President and Attorney General lack authority to remove and replace U.S. Attorneys who are appointed by district courts prior to the confirmation of presidential nominees; and second, the Attorney General should be restricted from handpicking partisan prosecutors to oversee politically-charged investigations and prosecutions. While there is no simple solution to the politicization of federal prosecution, restructuring prosecutorial and political power within the DOJ to reduce partisanship, both real and apparent, is, as Berman recognizes, an important component

 Denver Law Review, Vol. 100, No. 2, 2023, NYLS Legal Studies Research Paper No. 4373301