1 Introductory & Advanced Guideline Training Charles Evans Whittaker United States Courthouse Kansas City, MO February 24-25, 2016

2 Office of Research and Data Glenn R. Schmitt, J.D., M.P.P. Director

3 The Sentencing Reform Act established a research and development program within the Commission for the purpose of – (A) serving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices; and (B) assisting and serving in a consulting capacity to Federal courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices. 28 U.S.C. § 995(a)(12) (emphasis added) ORD Authorities

4 The SRA also authorized the Commission to publish data concerning the sentencing process; collect systematically and disseminate information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a) of title 18, United States Code. 28 U.S.C. § 995(a) (14), (15) ORD Authorities

5 The SRA also authorized the Commission to collect systematically the data obtained from studies, research, and the empirical experience of public and private agencies concerning the sentencing process; devise and conduct, in various geographical locations, seminars and workshops providing continuing studies for persons engaged in the sentencing field. 28 U.S.C. § 995(a)(13), (17) ORD Authorities

6 Collection, review, data entry, and analysis of information from more than 400,000 sentencing documents received from the Federal courts annually In FY2014, documentation received from more than: 75,836 original individual cases 162 original organizational cases 3,585 resentencings and modifications of sentence 8,419 appeals of convictions and/or sentences ORD Activities

7 Within 30 days of judgment, court must submit a “written report” of the sentence and relevant factors to USSC Chief judge of each district is responsible, but Delegated to the CUSPO in 93 districts Delegated to the clerk of court in one district Authority: 28 U.S.C. § 994(w) How Do We Collect Our Data?

8 In chronological order of when they are created: Indictment (or other charging document) Plea agreement Presentence investigation report (PSR) Judgment and commitment order (J&C) Statement of reasons (SOR) What Documents Must Be Submitted to the Sentencing Commission?

9 Collection and analyses of regularly collected data Special coding projects to gather further data, and analysis of research conducted by others Compilation of annual sentencing data into the Sourcebook of Federal Sentencing Statistics Data in the Annual Report Participation on USSC “policy teams” created to examine issues relating to guideline usage Office of Research and Data Activities

10 Quarterly data releases to the public District, Circuit, and State data compilations Special requests from United States Judges Special requests from Congress Other publications analyzing USSC data Presentations at professional conferences Office of Research and Data Activities

11 R ECENT ORD R ESEARCH

12 Quick Facts Publications

13 Drugs Drug Trafficking Powder Cocaine Trafficking Methamphetamine Trafficking Marijuana Trafficking Crack Cocaine Trafficking Heroin Trafficking Oxycodone Trafficking Economic Crime Copyright & Trademark Infringement Counterfeiting Tax Fraud Theft, Property Destruction, & Fraud Firearms Section 924(c) Offenders Felon in Possession of a Firearm Immigration Alien Smuggling Illegal Reentry Offender Groups Offenders in the Federal Bureau of Prisons Career Offenders Native Americans in the Federal Offender Population Women in the Federal Offender Population Other Chapter Two Offenses Robbery Offenses National Defense Sentencing Issues Mandatory Minimum Penalties Quick Facts Topics

14 February 2015

15 Less than 0.4% of all offenders receive a life sentence each year. True life imprisonment sentences are rarely imposed (n-153 in FY13) In other cases the sentence imposed is likely to be a life sentence There were 168 “de facto” life sentences in FY13 Some other offenders are also unlikely to live to release due to age There were 291 “life expectancy offenders” in FY13 Mandatory minimum penalties have a substantial influence on the sentences imposed in these cases In cases where there is no mandatory minimum penalty the sentencing guidelines appear to influence the sentence imposed Life Sentence Report Findings

16 February 2015

17 Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions. Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range. Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty. Rule 35(b) sentencing reductions generally provide less benefit than do §5K1.1 substantial assistance departures. Although Rule 35(b) sentencing reductions alone are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences. Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions as the means to account for substantial assistance to the government receive less of a benefit for that assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures. Rule 35(b) Report Findings

18 June 2015

19 Overall decreasing trend in the imposition of alternative sentences from fiscal year 2005 to 2014 Large number of ineligible offenders deportable aliens convictions under certain statutes Decrease in alternative sentences among eligible offenders despite a steady overall increase in downward departures and variances overall consistency in offense severity Alternative Sentence Report Findings

20 Trend of Alternative Sentences for Eligible U.S. Citizen Federal Offenders in Zones A, B, and C Fiscal Years (N=267,384) SOURCE: U.S. Sentencing Commission FY2014 Datafile, USSCFY14. Of the 785,953 cases received by the Commission from fiscal years 2005 through 2014, a total of 237,052 were excluded because they involved convictions under statutes requiring a mandatory minimum sentence (201,975) or were missing information on statutory minimum (35,077). Of the remaining 548,901 cases, 49,580 were excluded due to incomplete (49,429) or missing guideline application information (151). An additional 986 cases were excluded because they did not involve sentences of prison or probation (823) or were missing information on sentence imposed (163). An additional 230,950 cases were excluded because they involved non- citizens (229,878) or were missing information on citizenship (1,072). An additional 196,933 cases were excluded because they involved sentencing ranges in Zone D or were missing information on sentencing zone.

21 O VERVIEW OF R ECIDIVISM B Y F EDERAL O FFENDERS R ELEASED IN CY 2005

22 USSC’s prior recidivism studies have focused on the question: How does knowledge of recidivism help USSC shape sentencing policy? The Commission’s 2015 priorities included a multi-year study of recidivism: Examination of circumstances that correlate with increased or reduced recidivism (demographics, federal instant offense, criminal history, type and length of sentence, etc.) Amendments to the Guidelines Manual as may be appropriate. Possible recommendations to Congress to reduce costs of incarceration and overcapacity of prisons using information obtained from such study. New Multi-year Study of Recidivism

23 25,431 study subjects are federal offenders: 1)who are citizens; 2)who re-entered the community in CY2005; 3)whose PSR is available; 4)who have valid FBI numbers which could be located in Criminal History Repositories (NLETS) in at least one of 50 states, DC, or federal records; 5)who were not reported dead or escaped or detained; and 6)whose sentences were not vacated. New Multi-year Study of Recidivism

24 Recidivism is measured by: Re-Arrest: An arrest within 8 years of release from confinement/court. Excludes arrests for minor traffic offenses. Includes revocations of supervision and returns reported by BOP. Re-Conviction: An arrest within 8 years of release that resulted in a subsequent court conviction. Revocations of supervision will not be included since no formal prosecution occurred. Re-Incarceration: An arrest within 8 years of release that resulted in a prison or jail sentence. Includes return to BOP custody not accompanied by a conviction, such as revocations of supervision that result in term of incarceration. Multiple Measures of Recidivism

25 Instant Offense for CY05 Released Offenders (N=25,429) SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, two were excluded due to lack of information on type of offense.

26 Criminal History Category for CY05 Released Offenders (N=25,321) SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 110 were excluded due to missing information on criminal history category.

27 Type of Sentence Imposed for CY05 Released Offenders (N=25,394) SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 37 were excluded that were missing information on type of sentence imposed.

28 R ESULTS

29 Re-Arrest Percent49.4% Median Time to Recidivism 21 Months Median Number of Recidivism Events 2 Most Frequent Felony Event (%) Drug Trafficking (19.2%) Recidivism of CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 12,879 were excluded due to having no re-arrests. An additional 7,273 were excluded due to having no felony arrests after release from prison.

30 Re-ArrestRe-Conviction Percent49.4%31.8% Median Time to Recidivism 21 Months30 Months Median Number of Recidivism Events 21 Most Frequent Felony Event (%) Drug Trafficking (19.2%) Drug Trafficking (19.9%) Recidivism of CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 12,879 were excluded due to having no re-arrests. An additional 7,273 were excluded due to having no felony arrests after release from prison.

31 Re-ArrestRe-ConvictionRe-Incarceration Percent49.4%31.8%24.7% Median Time to Recidivism 21 Months30 Months29 Months Median Number of Recidivism Events 211 Most Frequent Felony Event (%) Drug Trafficking (19.2%) Drug Trafficking (19.9%) Drug Trafficking (20.5%) Recidivism of CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 12,879 were excluded due to having no re-arrests. An additional 7,273 were excluded due to having no felony arrests after release from prison.

32 Time to First Re-arrest for CY05 Released Offenders (N=25,431) SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY The re-conviction and re-confinement lines indicate time to first arrest that led to a conviction and time to first arrest that led to a confinement, respectively.

33 Re-Arrest Offense Types for CY05 Released Offenders Felony Offenses Only (N=5,279) SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 12,879 were excluded due to having no re-arrests. An additional 6,809 were excluded due to having no felony arrests after release from prison.

34 R ESULTS BY K EY C HARACTERISTICS

35 Re-Arrest Rates by Type of Federal Offense for CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, two were excluded due to missing information on offense type.

36 Re-Arrest by Criminal History Category for CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 110 were excluded due to missing information on criminal history category.

37 Re-Arrest by Sentence Type for CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY Of the 25,431 cases analyzed, 65 were excluded for a sentence to a fine only, and an additional 37 were excluded that were missing information on type of sentence imposed.

38 Re-Arrest by Career Offender/ACCA Status for CY05 Released Offenders SOURCE: U.S. Sentencing Commission FY Datafiles, USSCFY

39 Re-Arrest by Age for CY05 Released Offenders SOURCE: U.S. Sentencing Commission 2005 Recidivism Release Cohort Datafile, RECID05. Of the 25,431 cases analyzed, 45 were excluded due to missing information on age at time of release.

40 R ETROACTIVE A PPLICATION OF A MENDED S ENTENCING G UIDELINES

41 The sentences of 16,500 offenders were reduced by 17% (26 months) under the “crack minus two” amendment (Amendment 706, 2007). The sentences of 7,700 offenders were reduced by 20% (30 months) under the FSA retroactivity amendment (Amendment 750, 2011). As of December 2015, the sentences of 21,000 offenders have been reduced by 17% (23 months) under the 2014 drug guidelines amendment (the “drugs minus two amendment”) (Amendment 782, 2014). Resentencings are on-going. Final number will be higher. Early Release of Incarcerated Offenders Due to USSC Action

42 U PCOMING R ESEARCH

43 Recidivism Project Ten publications over the next two years, including reports on the recidivism of drug offenders and firearms offenders, the effect of age on recidivism, and an assessment of how well the sentencing guidelines criminal history score predicts recidivism. Quick Facts Series All Quick Facts updated with FY15 data New releases on fraud types Criminal History Project Working to identify the type of prior criminal convictions for all federal offenders. The Future of ORD Research

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