Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001
Published: 2003-10-24T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Created in 1984, the United States Sentencing Commission (USSC) was charged with developing the federal sentencing guidelines to limit disparities in sentencing among offenders with similar criminal backgrounds found guilty of similar crimes. Judges determine a specific sentence based on an applicable sentencing guideline range, such as 57 to 71 months, provided in the guidelines. Judges may impose sentences that fall anywhere within the range, above it (upward departures), or below it (downward departures). For some offenses, Congress established mandatory minimum sentences. Judges may also sentence below the minimum in certain circumstances. We examined the differences in drug offense departures from sentencing guidelines and mandatory minimum sentences among federal courts and the documents the USSC used to record and analyze sentences.
section_title: What GAO Found
paragraphs: Generally, downward departures are defined as (1) substantial assistance departures, made at the prosecutor's request because the offender provided substantial assistance to the government; and (2) other downward departures made for other reasons, such as a plea agreement, a judge's consideration of mitigating factors, or early disposition, i.e., "fast track" programs initiated by prosecutors for low-level drug trafficking offenses. Of federal sentences for drug-related offenses in fiscal years 1999-2001, the majority (56 percent) was within applicable guideline ranges. Downward sentencing departures were more frequently due to prosecutors' substantial assistance motions (28 percent) than for any other reasons (16 percent). For federal drug sentences that carried a mandatory minimum term of imprisonment, more than half of the drug sentences imposed fell below a mandatory minimum. Of these, half fell below a minimum due to prosecutors' substantial assistance motions and half due to other reasons. After adjusting for differences in offense and offender characteristics among judicial circuits and districts, our analysis showed variations among certain circuits and districts in the likelihood an offender received a substantial assistance departure, other downward departure, or a sentence falling below a mandatory minimum. However, these variations did not necessarily indicate unwarranted sentencing departures or misapplication of the guidelines because data were not available to fully compare the offenders and offenses for which they were convicted. For drug sentences nationally, USSC receives 96 percent or more of the three key documents, including the statement of reasons (SOR), used to record sentence length and departures. For a small percentage of drug cases in USSC's database, information is missing, incomplete, or too difficult for USSC to interpret, principally affecting sentencing analyses in districts where the missing or incomplete data are most prevalent.

section_title: Letter
paragraphs: The Sentencing Reform Act of 1984 established the independent U.S.  Sentencing Commission (USSC) and charged it with developing the  Federal Sentencing Guidelines. The guidelines were intended to avoid  unwarranted disparities in sentences among defendants with similar  criminal records who were found guilty of similar criminal conduct  without eliminating the thoughtful imposition of individualized sentences.To foster this goal, the guidelines specify sentencing guideline ranges—a  range of time (in months)—that offenders should serve given the nature of  their offense and other factors but also permit sentences to depart upward  or downward from guideline ranges due to aggravating or mitigating  circumstances. For certain types of offenses, including certain drug and  weapons offenses, Congress has statutorily specified mandatory minimum  sentences that supplant the otherwise applicable guidelines range (see fig.  1). Judges may impose sentences that depart downward from established  guidelines or fall below a mandatory minimum at the request of the  prosecution because the defendant has provided substantial assistance to  the government.  USSC designates sentences departing downward for this  reason as substantial assistance departures.  A judge may also depart  downward as a result of accepting a plea agreement or after considering  characteristics of the offender or the offense not fully covered in the  guidelines, such as extraordinary rehabilitation efforts after the offense  but prior to sentencing. To distinguish such sentences from substantial  assistance sentences, USSC designates them as “other downward  departures” as part of its data gathering efforts.
As you requested, this report discusses downward departures for federal  drug offenses. We identified the extent to which federal drug sentences  departed downward from a guideline range determined by the court or fell  below an applicable mandatory minimum in fiscal years 1999-2001. Our  objectives were to (1) identify the percentage of federal sentences, and,  specifically, those for drug-related offenses, departing downward due to  substantial assistance motions or other reasons; (2) identify the  percentage of federal drug sentences that fell below an applicable  mandatory minimum due to substantial assistance motions or other  reasons; (3) compare the likelihood across judicial circuits and districts  that offenders received downward departing sentences or sentences  below a mandatory minimum; and (4) identify limitations, if any, of USSC’s  sentencing data for drug offenses.
To meet these objectives, we obtained USSC’s sentencing database for  fiscal years 1999 through 2001 and used its coding scheme to identify  (1) sentences departing downward due to a prosecutor’s substantial  assistance motion (substantial assistance departures); (2) sentences that  departed downward for other reasons (other downward departures); and  (3) sentences that fell below an applicable mandatory minimum. We used  the offender and offense characteristics in USSC’s database to statistically  control for major differences among circuits and districts in the types of  offenders sentenced and the offenses for which they were sentenced.  However, it is important to note that a variety of other variables, such as  an offender’s extraordinary rehabilitation efforts after the offense but  prior to sentencing, could affect departure decisions, but data for these  variables are not readily available.
We also reviewed the types of documents USSC staff used to identify  departures, the reasons for those departures, and the number of missing  documents by circuit and district. We interviewed officials at USSC and  the Administrative Office of the U.S. Courts (AOUSC), the administrative  arm of the federal judiciary, and the Chair, Committee on Criminal Law of  the Judicial Conference of the United States, the judiciary’s principal  policymaking body. We conducted our work between March and August  2003 in Washington, D.C., in accordance with generally accepted  government auditing standards. Appendix I includes a more detailed  description of our scope and methodology. Appendixes II and III provide  more detailed descriptions of how we applied our methodology.
subsections: section_title: Background
paragraphs: The United States is divided into 94 federal judicial districts, each  containing the federal trial courts, where criminal and civil cases are tried.  Congress placed each of the 94 districts in 1 of 12 regional circuits, each  containing a court of appeals, to which district court decisions may be  appealed. Figure 2 is a map of the United States showing the geographical  boundaries of the 94 district courts and the 12 regional circuit courts of  appeals (including 11 numbered circuits and the District of Columbia  Circuit.). There is also a Court of Appeals for the Federal Circuit with  nationwide jurisdiction for specific types of cases, such as patent appeals.  This court does not hear cases involving the federal sentencing guidelines.
In 1984, to help ensure that similar crimes committed by similar criminals  were punished with similar sentences, Congress, under the Sentencing  Reform Act, established the U.S. Sentencing Commission (USSC) and  directed that it develop a comprehensive sentencing scheme for federal  crimes. USSC established guideline ranges for the length of federal prison  sentences taking into account offender and offense characteristics to  establish appropriate sentence terms. The sentencing guidelines cover  more than 90 percent of all felony and Class A misdemeanor cases in the  federal courts. The sentencing guidelines do not apply to Class B or C  misdemeanors or infractions, offenses with a maximum prison exposure  of 6 months or less.
Applying USSC’s guidance, federal district judges in the 94 federal district  courts determine the appropriate sentencing guideline range for an  offender based on various factors related to (1) the offense and (2) the  offender. The offense is assigned an offense level, which for drug offenses  is based on several factors such as the quantity and type of drug involved  and whether the offense involved violence. The offender is also assigned a  criminal history category based on the number of criminal history points.  Criminal history points reflect the severity of an offender’s prior criminal  record. Taken in combination, the offense level and criminal history  category correlate with a sentencing guideline range, which is expressed  in months. In addition, for some drug offenses where a mandatory  minimum sentence applies, the applicable mandatory minimum sentence  supplants the lower end of the applicable guidelines sentencing range. For  example, as shown in figure 3, a convicted offender whose offense of  conviction is assigned an offense level of 25 and who has a “criminal  history category I” should be sentenced between a maximum of 71 months  and a minimum of 57 months under the sentencing guidelines unless a  mandatory minimum greater than 57 months (e.g., 60 months) is required.  A sentence less than 60 months falls below the applicable mandatory  minimum.
The guidelines also permit sentences that fall above or below an  applicable guidelines range, often called upward or downward departures,  respectively, in certain circumstances. As illustrated in figure 3, a sentence  of more than 71 months would depart upward from the applicable  guideline range while a sentence of less than 57 months would depart  downward, falling below the lower end of the guideline range.
At the request of the prosecution, the judge may depart downward  because the defendant has provided substantial assistance to the  government—what USSC designates as substantial assistance departures.  But the guidelines also provide that a judge may depart downward if the  court finds certain mitigating circumstances exist that were not adequately  taken into consideration by USSC in formulating the guidelines that should  result in a sentence below the guideline range. To assist sentencing  courts, the guidelines list both encouraged departure factors (such as  coercion or duress, diminished capacity, or aberrant behavior of non- violent offenders) and discouraged though permissible departure factors  (such as age, physical condition, family responsibilities, or prior good  works). Judges may also consider other, unmentioned factors that were  not adequately considered by the guidelines (such as extraordinary  rehabilitation after the offense but prior to sentencing). USSC designates  consideration of encouraged, discouraged, and unmentioned factors as  “other departures.” Judges are required to explain the reasons for  departing from the guidelines. The recently enacted PROTECT Act of 2003  makes clear that the reasons must be specific, written, and provided to  USSC.
USSC maintains a database that records a variety of data on the offenders  and offenses for which sentences are imposed. Judges must comply with  USSC’s data collection needs by furnishing a written report of the  sentence, and the PROTECT Act makes clear that specific sentencing  documents must accompany that report. Included in these data is  information on whether the sentences imposed fell within or outside the  applicable sentencing guidelines range as determined by the sentencing  judge. Information on the incidence of sentencing outside of the guideline  ranges is used by USSC to identify areas where the sentencing guidelines  may need adjustment. Congress, under the PROTECT Act, directed USSC  to review the grounds of downward departures that are authorized by its  sentencing guidelines, policy statements, and official commentary, and to  promulgate amendments to ensure that the incidence of downward  departures is substantially reduced. The required amendments to the  sentencing guidelines are due October 27, 2003.
As previously noted, various drug offenses carry a mandatory minimum.For such offenses, the mandatory minimum precludes judges from  sentencing at a lower guideline range minimum or from granting a  downward departure that might otherwise be available, unless one of two  statutory provisions applies. First, a judge may impose a sentence below  the applicable mandatory minimum if the government (the federal  prosecutor) files a motion with the court for such sentencing relief  because of the defendant’s “substantial assistance” in the investigation or  prosecution of another person. The discretion to make such a motion  rests solely with the prosecutor. Second, in the absence of a substantial  assistance motion, the “safety valve” provision affords relief from any  otherwise applicable mandatory minimum sentence for drug offenders  who have minimal criminal history (i.e., no more than 1 criminal history  point); were not violent, armed, or high-level participants; and provided  the government with truthful information regarding the offense. In these  cases, the court is directed by statute to impose a sentence pursuant to the  sentencing guidelines without regard to a mandatory minimum.
As incorporated in USSC’s sentencing guidelines, both the substantial  assistance and the safety valve provision may affect sentencing for  offenders whose offense of conviction does not carry a mandatory  minimum sentence—that is, whose sentences are solely governed by the  application of the sentencing guidelines. For such offenders, a substantial  assistance motion permits the judge to depart downward from the  applicable guidelines range. With respect to the safety valve, the  sentencing guidelines provide offenders who are convicted of certain drug  offenses and who meet the legislative safety valve requirements a 2-level  decrease to their base offense level, for example, from level 25 to level 23.
section_title: Federal Drug Sentences Departed Downward More Often Due to Substantial Assistance than for Other Reasons
paragraphs: The majority of federal sentences fell within an applicable guideline range,  but when sentences departed downward, or fell below a guideline range,  they did so about as often due to substantial assistance as to other  reasons. Of the 162,090 federal sentences from fiscal years 1999-2001 for  which complete sentencing information was available, most were within  the guideline ranges determined by the court (64 percent), and about an  equal proportion of sentences departed downward due to substantial  assistance (18 percent) as for other reasons (17 percent).
Similar to federal sentences overall, of the 69,279 drug sentences for which  complete departure information was available, we found that most  sentences were within guideline ranges (56 percent). Unlike federal  sentences overall, from fiscal years 1999 to 2001, federal drug sentences  departed downward more frequently due to substantial assistance  (28 percent) than other reasons (16 percent), as shown in table 1. Other  reasons that drug sentences departed downward included early  disposition, that is, fast track, programs initiated by prosecutors; plea  agreements; and judges’ consideration of mitigating circumstances. See  appendix IV for more information on the frequency of reasons cited for  other downward departures.
Prosecutors’ substantial assistance motions resulted in downward  departing sentences that were on average 49 percent of the average lowest  sentence drug offenders otherwise would have received under the  guidelines. Other downward departures resulted in sentences that were on  average 57 percent of the average lowest sentence drug offenders  otherwise would have received under the guidelines. See appendix I for  more detailed information on sentence reductions.
The percentage of drug sentences that departed downward due to  prosecutors’ substantial assistance motions or for other reasons varied  across judicial circuits in fiscal years 1999–2001, as shown in figure 4.
The percentages of drug sentences departing downward differed notably  across the 94 districts, even in some cases among districts within the same  circuit. Figure 5 shows the 94 judicial districts grouped according to the  percent of sentences imposed in districts that departed downward due to  substantial assistance and for other reasons. In 55 districts, more than  30 percent of sentences departed downward due to substantial assistance,  while in only 5 districts more than 30 percent of the sentences departed  downward due to other reasons. However, these percentage differences  do not take into account differences in offender and offense  characteristics that may contribute to differences among circuits and  districts.
section_title: More Than Half of Drug Sentences Fell below an Otherwise Applicable Mandatory Minimum Sentence
paragraphs: Of 41,861 federal drug sentences included in our analysis that carried a  mandatory minimum term of imprisonment, more than half (52 percent)  fell below an otherwise applicable mandatory minimum sentence. These  sentences were split equally among those that fell below an otherwise  applicable mandatory minimum sentence due to substantial assistance  (26 percent) and those that fell below for other reasons, such as the safety  valve (26 percent). (See fig. 6.)
Nearly all of the mandatory minimum drug sentences carried either a  5-year (48 percent) mandatory minimum or a 10-year minimum  (49 percent). On average, prosecutors’ substantial assistance motions  reduced drug offenders’ 5-year mandatory minimum sentence by  33 months. Sentences lowered for other reasons, such as the safety valve,  that would otherwise be subject to a 5-year mandatory minimum were  reduced by an average of 26 months. On average, prosecutors’ substantial  assistance motions reduced drug offenders’ 10-year mandatory minimum  sentences by 63 months, and sentences lowered for other reasons that  would otherwise be subject to a 10-year mandatory minimum were  reduced by an average of 52 months. See appendix I for more detailed  information on sentence reductions.
Figure 7 provides a summary of the number and percent of federal drug  sentences that fell below a mandatory minimum or guideline range  compared with sentences that did not carry a mandatory minimum.  Almost all of the sentences (99 percent) that fell below a mandatory  minimum due to substantial assistance also departed downward from an  applicable guideline range, whereas only a quarter of sentences that fell  below an otherwise applicable mandatory minimum for other reasons also  departed downward from an applicable guideline range. These percentage  differences do not take into account offender and offense characteristics  that may contribute to differences among circuits and districts.
In 7 of the 12 Circuits, more sentences fell below a mandatory minimum  due to substantial assistance motions than for other reasons, as figure  8 shows.
In addition to these differences among the circuits, across the 94 districts  the percentage of sentences meeting or below an otherwise applicable  mandatory minimum substantially varied. Figure 9 shows the 94 judicial  districts grouped according to the percent of sentences imposed that fell  below an otherwise applicable mandatory minimum due to substantial  assistance and for other reasons. In 40 districts, more than 30 percent of  sentences fell below an otherwise applicable mandatory minimum due to  substantial assistance whereas in 16 districts more than 30 percent fell  below for other reasons. Appendix II has more details on our analysis of  sentences for which the offense of conviction carried a mandatory  minimum sentence.
section_title: Likelihood of Sentences Departing Downward or Falling below a Mandatory Minimum Varied by Judicial Circuits and Districts
paragraphs: The percentage differences among circuits and districts suggest that  variation existed in the way courts sentenced offenders; however, as  discussed earlier, these percentages do not take into account factors such  as the offender and offense characteristics that may affect sentencing  within a circuit or district. For example, in addition to the number of  deportable aliens potentially affecting the percent of other downward  departures, some circuits and districts, when compared with others, could  sentence a greater proportion of offenders who possessed and shared  information of the crime that assisted the government in the investigation  or prosecution of others. Therefore, a larger percent of offenders in those  circuits and districts could have received a decrease in their sentence due  to substantial assistance. Recognizing that judicial circuits and districts  differed in the types of offenders sentenced and the offenses for which the  offenders were sentenced, our analysis adjusted for differences such as  race, gender, offense, criminal history, and offense severity (see appendix  I for a complete list of variables included in our analysis). Although these  are the major factors that could affect the likelihood of an offender  receiving a departure, they are not all-inclusive.
We used adjusted odds ratios to estimate how circuits and districts vary in  sentencing practices. An adjusted odds ratio in this case indicates whether  a departure is statistically less likely, as likely, or more likely to occur in  one circuit as in another. We can describe how much more likely or less  likely a substantial assistance departure was to occur in one jurisdiction  versus another; for instance, we can estimate that a substantial assistance  departure was 20 percent less likely to occur or 3.6 times more likely to  occur in one circuit compared with another. Our analysis focused on  adjusted odds ratios since they provide us with our best estimates of  differences across circuits and districts after taking into account the  differences in drug cases handled across jurisdictions.
Using adjusted odds ratios to estimate the likelihood of an offender  receiving a substantial assistance departure, we can see that percentage  differences can be misleading. In comparing percentages of substantial  assistance sentences in the Eighth Circuit (37 percent) with other circuits,  it appears that in 5 circuits –D.C. (30 percent), the Second (32 percent),  Fourth (33 percent), Seventh (31 percent), and Eleventh Circuits  (30 percent)— fewer offenders received substantial assistance departures.  But taking into account differences of offenders and offense  characteristics, adjusted odds ratios show that in D.C., the Fourth and  Eleventh circuits, offenders were actually as likely to receive a substantial  assistance motion as in the Eighth Circuit. Although the Second Circuit’s  percentage of substantial assistance departures was lower than the Eighth  Circuit’s, after adjusting for offender and offense characteristics, offenders  in the Second Circuit were 1.4 times more likely to be granted a  substantial assistance departure than offenders in the Eighth Circuit. In  another example, the First Circuit appears to grant more other downward  departures (10 percent) than the Eighth (8 percent), but the adjusted odds  ratios imply that offenders in the First Circuit are actually 22 percent less  likely to be granted an other downward departure than similar offenders in  the Eighth Circuit.
After adjusting for differences in drug offenses and offender  characteristics, the likelihood of an offender receiving a lower sentence  due to either a prosecutor’s substantial assistance motion or for other  reasons varied substantially across the 12 U.S. circuits and the 94 U.S.  district courts. For example, drug offenders sentenced in the Third Circuit  from fiscal years 1999-2001 were over 3 times more likely to receive a  substantial assistance departure at a prosecutor’s initiative than drug  offenders sentenced in the First Circuit during that same time period. The  likelihood a drug offender would be granted an other downward departure  also varied substantially. Adjusting for differences in offender and offense  characteristics, drug offenders sentenced in the Ninth Circuit from fiscal  years 1999-2001 were over 18 times more likely to have received an other  downward departure than similar drug offenders sentenced in the Fourth  Circuit during that same time period.
The likelihood of courts to impose a sentence that fell below a mandatory  minimum due to substantial assistance or other reasons also varied  substantially across the 12 U.S. circuits and the 94 U.S. district courts,  even after taking into account offense and offender characteristics for  drug offenses. See appendix III for more details about the statistical  likelihood of drug sentences departing downward or falling below a  mandatory minimum and the variation in those likelihoods across all  circuits and districts.
Our analysis shows variation—in some cases substantial differences—  among circuits and districts in the likelihood that offenders convicted of  drug offenses would receive substantial assistance or other downward  departures in fiscal years 1999-2001. However, these differences, in and of  themselves, may not indicate unwarranted sentencing departures or  misapplication of the sentencing guidelines. Empirical data on all factors  that could influence sentencing were not available, and so an analysis that  could fully explain why sentences varied was not possible.
section_title: Opportunities Exist to Improve Sentencing Data Collection and Reporting
paragraphs: USSC data were generally sufficient for our analyses of downward  departures and mandatory minimum sentences across circuits and for  most districts. USSC’s sentencing data are based on information from five  documents usually produced for each case during the sentencing process.  USSC requires that district courts send them these documents for each  sentence imposed but principally relies on three of them—the Judgment  and Commitment Order (J&C), Statement of Reasons (SOR), and  Presentence Report (PSR)—to identify the length of sentences imposed,  departures, and the reasons for departures. Nationally for drug cases,  USSC received 96 percent or more of each of these documents from the  district courts. The percentage of documents missing varied by circuit and  districts within circuits. For example, among the circuits the percentage of  missing SORs ranged from less than 1 percent to more than 7 percent.  Among districts within the Ninth Circuit, the percentage of missing SORs  ranged from less than 1 percent to more than 58 percent. Although USSC  received most of the requested documents, some were missing key  information or contained unclear information that was difficult to  interpret. For instance, among the 12 circuits, departure data were missing  for 1 percent to 7 percent of all drug sentences imposed in fiscal years  1999-2001. See appendix IV for more detailed information.
In districts where the missing documents or information are concentrated  analysis of departures could be affected. Missing or unclear data also  limited our ability to determine when the safety valve was used as the  basis for sentencing below a mandatory minimum. For example, in our  preliminary analysis, we found that of the 11,256 federal drug sentences  for which the offense of conviction carried a mandatory minimum and fell  below that minimum, about 1,600 (14 percent) were coded by USSC as  falling below the applicable mandatory minimum but not involving either  the safety valve or substantial assistance. We discussed this issue with  USSC. After reviewing the underlying documents used for coding these  1,600 sentences, USSC determined that over 900 sentences were miscoded.  These miscoded sentences were recoded in a variety of ways, including  some coded as involving the safety valve, some coded as involving  substantial assistance, some coded as having a changed drug quantity that  affected the applicable mandatory minimum, and some coded as missing  safety valve information. USSC did not recode 681 sentences; these  sentences remained coded as falling below a mandatory minimum but  involving neither the safety valve nor substantial assistance. In addition,  safety valve information was determined to be missing from 770 sentences  for which the offense of conviction carried and fell below a mandatory  minimum.
AOUSC and USSC officials offered several explanations for missing  documents and information or unclear information on documents that was  difficult to interpret and code consistently. AOUSC officials noted that  judges may not submit documents due to security concerns in cases where  the record has been sealed or the offender placed in the witness  protection program. Processing a high volume of drug cases could  potentially affect document submission, they also noted. Of the four  circuits with the highest volume of drug cases, two—the Fourth and the  Ninth—also had the highest percentage of missing SORs, 7.4 percent and  6.6 percent, respectively. Although AOUSC developed a standard SOR  form for judges to use, USSC officials said that judges submit information  to USSC using a variety of forms and formats. In USSC’s view, this may  contribute to missing information on documents (e.g., forms that do not  prompt for an applicable mandatory minimum) or unclear information on  the forms that is difficult to interpret.
In addition to these explanations, USSC and AOUSC officials said no  information had been provided to judges and other court officials on how  sentencing documents are used by USSC to create its database or how to  clearly and completely prepare forms such as the SOR to meet USSC’s  data collection needs. USSC relies almost exclusively on the SOR to  determine whether the sentence imposed departed from the guidelines  range, met a mandatory minimum, or involved substantial assistance.  Thus, missing, incomplete, or difficult to interpret information on that  form can affect the completeness and accuracy of the data in USSC’s  database.
USSC has taken steps to reduce the number of missing documents and  information, but opportunities for improvements exist. For instance, USSC  sends an annual letter to the courts identifying those cases in which there  appear to be missing documents. However, USSC officials said they do not  inform courts of documents that, while received by USSC, contained  missing or unclear information. In addition, USSC collaborates with the  AOUSC and the Federal Judicial Center, the judiciary’s research and  education body, to educate judges and court officials on how to apply the  sentencing guidelines, but they do not offer programs or workshops on  how to complete forms such as the SOR and other documents used by  USSC.
Although the AOUSC has also taken steps to improve the quality of  sentencing data captured on the SOR, opportunities for improvements  remain. At its September 2003 meeting, the Judicial Conference of the  United States, the federal judiciary’s principal policymaking body,  approved a new standard SOR form.  The Conference designated the new  form as the mechanism by which courts comply with the requirements of  the PROTECT Act to report reasons for sentences to USSC. The form was  revised in part because AOUSC officials and the Chair of the Judicial  Conference’s Committee on Criminal Law stated that the previous SOR  provided an imprecise measure of judicial discretion. It did not collect  information on other downward departures that are initiated by the  prosecution. The form was revised in consultation with USSC to better  meet its data collection needs. However, a USSC official said that the new  SOR does not specifically prompt for information on the application of the  safety valve or whether the offense of conviction carried a mandatory  minimum. In addition, judges will not be required to use this form  although USSC believes that the most effective step to improving the  completeness of the data the district courts report is for all courts to use a  single, standard SOR. AOUSC officials said that while the Judicial  Conference has endorsed the new form, they do not believe that the  Conference has the authority to require judges to use the new SOR.  However, AOUSC officials stated that with additional education they  believe judges will see the benefits of the new form and routinely use it.
section_title: Conclusions
paragraphs: The judiciary provided and USSC collected and interpreted sentencing  information for the vast majority of the 72,283 drug sentences imposed  during fiscal years 1999-2001. The small percentage of documents and  sentencing information for drug cases that were lacking in USSC’s  database did not affect the validity of our analyses at the national or  circuit level or for the vast majority of districts. However, the missing data  could limit analyses of sentencing practices in the few districts where  missing data are most prevalent. Reducing missing, incomplete, or difficult  to interpret information would improve USSC’s data on departures and  reasons sentences fell below an applicable mandatory minimum. Unless  the judiciary’s standard SOR is revised, judges are made aware of how to  effectively complete the SOR, and data submitted more consistently to  USSC by the courts, these data problems are likely to persist. More could  be done to help reduce the number of documents that are missing,  incomplete, or too difficult for USSC to interpret. Evaluating how USSC  interprets sentencing data was beyond the scope of this work. However,  we believe that without changes to the way USSC reports other downward  departures, that is, distinguishing, rather than combining other downward  departures initiated by the government with those initiated by judges, the  benefits of improved data collection of sentencing practices may not be  fully realized.
section_title: Recommendations
paragraphs: As USSC and the AOUSC work together to collect and record information  on federal sentences and provide additional education and information to  judges, we recommend that both USSC and AOUSC continue to  collaborate to develop educational programs and information for judges and other  officers of the court to encourage the use of AOUSC’s standard SOR and  more effective ways to complete the SOR and  revise the standard SOR to better meet the data collection needs of USSC.
We also recommend, resources permitting, that USSC, in addition to  notifying courts of missing sentencing documents, notify the Chief Judge  of each district of documents for drug cases that were received but  contained information that was unclear, incomplete, or difficult to  interpret.
section_title: Agency Comments
paragraphs: We requested comments on a draft of this report from USSC, the AOUSC,  the Judicial Conference Committee on Criminal Law, and the Department  of Justice (DOJ). We received written comments on October 10, 2003, from  USSC and the Judicial Conference Committee on Criminal Law. Both  generally agreed with our report and our recommendations, although the  Criminal Law Committee was concerned that the variation among districts  we found in the likelihood of other downward departures could  mistakenly be attributed to judicial discretion. Their official comments are  reproduced in Appendix V. We received oral technical comments from  USSC and written technical comments from DOJ and the AOUSC that we  incorporated where appropriate. DOJ, the Committee on Criminal Law,  and USSC all noted that “fast-track” sentences—prosecutor-initiated  programs to encourage early case disposition and reduce the burden on  the courts—could account for some of the variation we found among  districts in other downward departures. We have added new tables in  appendix IV that show the reasons reported to USSC for other downward  departures and the frequency with which each reason was cited.
USSC generally agreed with our report and our recommendations. USSC  stated that it is already working to develop more detailed sentencing  documentation, submission procedures, and educational outreach to  courts and court personnel. USSC noted that while our recommendations  are helpful and consistent with their own thinking, implementation of such  measures may exceed their current resources given the increasing volume  of sentences to be processed and more detailed information for each  sentence required by the PROTECT Act.
subsections: section_title: The Judicial Conference Committee on Criminal Law
paragraphs: The Judicial Conference Committee on Criminal Law generally agreed  with our report and our recommendations. The Committee noted that it  has taken significant steps to help USSC improve its data collection by  revising the standard Statement of Reasons form and endorsing the  standard form as the way to comply with PROTECT Act requirements.
The Committee commented that our report did not address the extent to  which judges themselves, absent a prosecutor’s request, have imposed  sentences that fall below the sentencing guideline range. Further, the  Committee noted that our report did not sufficiently distinguish downward  departures that are due to judicial discretion from those that are due to  prosecutorial discretion. As a result, according to the Committee, the  category “other downward departures” invites confusion, and some may  mistakenly attribute all such departures to judges. We state in our report  on page 11 that other downward departures are attributable to  prosecutors as well as judges. Additionally, data are not recorded, coded,  or reported in ways that clearly delineate other downward departures due  to judicial discretion from those due to prosecutorial discretion.
section_title: Impact of Fast Track Sentences on Analysis of Other Downward Departures
paragraphs: In addition, DOJ, USSC, and the Committee on Criminal Law stated that  our report did not sufficiently discuss the impact of early disposition or  “fast track” programs on rates of other downward departures in those  circuits and districts where such programs were in place. Fast-track  programs in the southwest border districts provide lower sentences  initiated by prosecutors for low-level drug trafficking offenses. DOJ noted  that these programs were developed in response to a dramatic rise in  immigration cases handled by federal prosecutors in districts along the  southwestern border and were designed to enhance public safety and  minimize the burden on the court system by processing these cases as  quickly as possible. All of the agencies took the position that some circuits  and districts departed downward more than others due to the greater  prevalence in some circuits and districts of cases involving fast track  programs.
It may ultimately be useful to distinguish fast track departures from other  downward departures, in the same way that we have distinguished  substantial assistance departures from other downward departures.  However, as currently coded in USSC database, fast track cases can be  identified only when a judge explicitly lists fast track as a reason for a  downward departure.  Sentences citing fast track as a reason for departing  downward occurred almost entirely in one district--the Southern District  of California in which 2,171 sentences (58 percent of other downward  departures imposed in this district) were recorded by USSC as departing  due to the government’s fast track program. In all of the remaining 93  districts combined, only 9 sentences were recorded as departing  downward due to fast track programs. Moreover, when we eliminate from  our analyses those other downward departures that list "fast track" as a  reason for departing, we obtain very similar results to those published in  our report; that is, a greater likelihood of other downward departures  occurring in the Southern District of California than in most other  districts. We do not include these results in detail in our report because of  our concern that fast track cases are not always reported by judges as  such or coded by USSC in their database. If fast track departures are to be  distinguished from other departures, then changes will need to be made in  how such cases are currently reported to USSC. USSC is completing a  report on departures, pursuant to a Congressional directive in the  PROTECT Act, and will address the impact of fast track programs on  departures in greater detail.
As agreed with your offices, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 2 days from the  date of this report. At that time, we will send copies of this report to the  AOUSC and Judicial Conference; DOJ; USSC; and the Federal Judicial  Center. We will also make copies available to others upon request. In  addition, the report will be available at no charge on GAO’s Web site at  http://www.gao.gov.
If you or your staffs have any questions about this report, please contact  David Alexander at (202) 512-8777 or at Alexanderd@gao.gov or me at  (202) 512-8777 or at jenkinswo@gao.gov. Major contributors to this report  are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
subsections: section_title: Objectives
paragraphs: Our objectives were to review and categorize all sentences imposed under  the federal sentencing guidelines by federal district judges in fiscal years  1999 through 2001. Specifically, our objectives were to  identify the percentage of federal sentences, and specifically, those for  drug-related offenses, departing downward from the applicable guidelines  range as determined by the court due to substantial assistance motions or  other reasons;  identify the percentage of federal drug sentences that fell below an  applicable mandatory minimum due to substantial assistance motions or  other reasons; compare the likelihood across judicial circuits and districts that offenders  received downward departing sentences or sentences below a mandatory  minimum;  identify limitations, if any, of the U.S. Sentencing Commission’s (USSC)  sentencing data for drug offenses.
section_title: Scope
paragraphs: To meet these objectives, we obtained USSC sentencing data for fiscal  years 1999 through 2001. During fiscal years 1999 through 2001, federal  judges imposed sentences on 175,245 criminal offenders. Of this total,  11,584 sentences (6.6 percent) lacked information on whether there was a  departure from the guidelines range, and for 1,046 sentences (0.6 percent)  the guidelines were not applicable. An additional 167 sentences  (0.1 percent) lacked information on the type of offender sentenced (drug  versus non-drug), and 358 sentences (0.2 percent) lacked information on  both departure status and type of offender. For the remaining 162,090  sentences (92.5 percent), table 2 shows the numbers and percents of  departure and non-departure sentences for drug and non-drug sentences.
Of the total of 175,245 offenders sentenced, 72,283 offenders (41 percent)  were convicted of drug offenses, and of those, 69,279 offenders had  complete information on departure status. Roughly 11 percent of the non- drug offenders and 28 percent of the drug offenders received sentences  below the guidelines range due to substantial assistance, while 18 percent  of the non-drug offenders and 16 percent of the drug offenders received  sentences that departed downward for other reasons. Of the 69,279 drug  sentences that had valid information for USSC’s departure variable, 42,145  sentences (61 percent) carried a mandatory minimum. Our analyses of  mandatory minimum sentences excluded 284 of these sentences  (0.6 percent of all mandatory minimum sentences) that lacked the valid  sentence length information necessary to determine whether the sentence  fell below the minimum.
section_title: Methodology
paragraphs: We had extensive discussions with knowledgeable USSC staff about the  definitions and use of the data elements in our analysis. USSC takes many  steps to ensure the reliability and completeness of the data it receives  from districts. We did not independently validate the data in USSC’s  database; however, we did assess the quality of USSC data in our analysis  by testing and crosschecking selected data elements for internal  consistency. We discussed any anomalies we found from these tests with  knowledgeable USSC staff. On the basis of our tests and discussions with  USSC officials, we determined that the data were sufficiently accurate for  our reporting objectives.
We defined sentences that fell above or below an applicable guideline  range in accordance with USSC’s definition of “departures”—sentences  imposed that fall outside the sentencing guidelines range established by  the court. In USSC’s database sentences are coded into five categories: no  departure, upward departure, downward departure, substantial assistance,  and inapplicable. We distinguished sentences coded as “substantial  assistance” as those that fell below sentencing guidelines due to  “substantial assistance” or prosecutorial discretion. For sentences that fell  below the guideline ranges for reasons other than substantial assistance,  generally attributed to judicial discretion, we used those sentences coded  as “downward departures.” See appendix IV for a description of other  reasons, which include the government’s early disposition or “fast track”  programs, cited by judges for downward departures.  Sentences for which  departure information was not available or coded “inapplicable” were  deleted from our analysis.
We defined sentences that fell below an applicable mandatory minimum  using USSC’s recorded information for sentence length. For convictions  where a mandatory minimum was recorded, those sentences with  recorded lengths that fell below the length of time stipulated by the  mandatory minimum were defined as “falling below the mandatory  minimum.” We identified 41,861 drug sentences that carried a mandatory  minimum and had valid sentence length data. Of those sentences we  designated as falling below an applicable mandatory minimum, we  identified those sentences that involved a substantial assistance motion  and those that fell below the mandatory minimum for other reasons, such  as the safety valve. If a sentence fell below and involved a substantial  assistance motion, we interpreted that sentence as a “substantial  assistance sentence” that fell below a mandatory minimum due to  prosecutorial discretion. If a sentence otherwise fell below, we interpreted  it as falling below for “other reasons.” Most of these sentences (9,384 or 87  percent of them) involved offenders that qualified for the safety valve  provision allowing judges to grant sentences below the mandatory  minimum. The data do not indicate that all of these sentences involve the  safety valve, which may be the result of coding errors or insufficient  available data.
We also reviewed the types of documents USSC staff used to identify  departures, the reasons for those departures, and the potential effect of  missing or unclear documentation on the interpretation of the departure  data in USSC’s database by district. We also interviewed officials at USSC  and the Administrative Office of the U.S. Courts (AOUSC), and the Chair  of the Judicial Conference Committee on Criminal Law.
subsections: section_title: Analyzing Numbers and Percents
paragraphs: We analyzed sentencing data using both descriptive statistics and  multivariate analytic methods. For fiscal years 1999-2001, we used USSC’s  data to identify for each circuit and district the total number and percent  of sentences that fell above or within an applicable guideline range and  below a guideline range for substantial assistance or for other reasons. We  also identified all sentences that fell below an applicable mandatory  minimum due to substantial assistance or for other reasons for each  circuit and district. We provide these numbers and percentages in  appendix II.
The simple differences in the percentage of drug sentences that fall below  the guidelines range or below the mandatory minimum may not, without  some adjustment, provide an appropriate basis for making comparisons  across circuits and districts. Characteristics of the offenses and offenders  sentenced can vary from one circuit or district to the next, and these  differences may affect the number or percent of sentences that fall below  applicable guideline ranges or a mandatory minimum. Judges in some  circuits or districts, for example, may sentence a greater proportion of  offenders who possessed and shared information of the crime that assisted  the government in the investigation or prosecution of others or whose  offenses were less serious.  Differences in these characteristics might  produce differences in sentences that have little to do with the exercise of  discretion. Therefore, the unadjusted differences in the percent of  sentences below the guidelines range or mandatory minimum might result  from judges sentencing different offenders, rather than from judges  sentencing offenders differently. Table 3 shows the offense and offender  characteristics we considered in the multivariate analyses we conducted  to adjust for such differences and re-estimate differences across circuits  and districts after taking them into account. It also provides the numbers  and percentages of all drug offenders or drug offenses that possessed each  of these characteristics.
Our primary focus in this report involved understanding how departure  sentences vary across circuits and districts. Some of this variability across  circuits and districts in the percentages of substantial assistance  departures and other downward departures in the sentencing of drug  offenders results from differences in the characteristics of offenses and  offenders sentenced across circuits and districts. Moreover, the  prosecution has sole authority to initiate a downward departure for  substantial assistance, and all offenders are potentially eligible for such  consideration. If an offender receives a substantial assistance departure,  USSC codes the case as a substantial assistance departure and does not  reflect any other downward departures that the judge may have granted in  that particular case. Because of this coding convention, the percentage of  other downward departures is partly a function of the percentage of  downward departures for substantial assistance, which result from  prosecutorial motions. To understand how these percentages are derived,  it is useful to consider the following two hypothetical districts and the  numbers of sentences of each type in each district shown in table 4.
The prosecution makes its selection for substantial assistance motions  after screening the total universe of 100 offenders sentenced in each  district. In our hypothetical example, the prosecutor offered and the court  accepted substantial assistance motions for 20 percent of 100 offenders in  district A and 50 percent of 100 offenders in district B—or 30 percent less  in district A. Because USSC’s coding convention distinguishes substantial  assistance cases from other downward departures, the universe of  offenders who could be coded as receiving other downward departures is  equal to the number of offenders who did not receive substantial  assistance departures. In district A this would be 80 offenders (100 minus  20 substantial assistance departures) and in district B it would be 50  (100 minus 50 substantial assistance departures). Using this universe of  offenders for our calculation, we would conclude that district A involves  10 percent fewer other departures than district B (40/80=50 percent versus  30/50=60 percent). While we offer percentages in some of the following  tables that, following standard procedures, are based on the total number  of offenders, we also use odds and odds ratios to describe the likelihoods  of sentences departing. These odds and odds ratios have the advantage of  utilizing the appropriate universe of offenders in making comparisons  across circuits and districts.
section_title: Estimating Departure Likelihoods
paragraphs: In order to make a fair comparison of sentencing patterns across circuits  and districts, we used logistic regression analysis to estimate the  likelihood that sentences would fall below an applicable guideline range or  a mandatory minimum, before and after adjusting for differences in  offender and offense characteristics across circuits and districts. Our  adjusted estimates of the differences in likelihoods across circuits and  districts involved controlling for the following offender and offense  characteristics:
Offender: gender, race, education, citizenship, and criminal history  category score.
Offense: type of drug involved; type and severity of offense; whether the  offense was eligible for mandatory minimum sentence; whether a gun was  involved in commission of the offense; whether the defendant was  convicted after trial or entered a guilty plea; and whether the safety valve  was applied.
Because they are somewhat more amenable to adjustment for offense and  offender characteristics, we use odds and odds ratios, rather than  percentages and percentage differences, to estimate the likelihood of  sentences falling below a guideline range and the variability in those  likelihoods across circuits and districts. We first calculated the odds on  substantial assistance falling below a guideline range among all sentences,  and then calculated the odds on other downward departures for those  sentences that did not involve departures for substantial assistance. In  both cases odds were compared across circuits and districts by taking  their ratios. In our simple two district example above, the odds on  substantial assistance departures in districts A and B would be 20/80=0.25  and 50/50=1.0, respectively, and the odds ratio of 1.0/0.25=4.0 indicates  that the likelihood of substantial assistance departures were 4 times as  great in district B as in district A. The odds on other downward  departures, excluding the substantial assistance departures, would be  40/40 =1.0 in district A and 30/20=1.5 in district B, and the ratio of  1.5/1.0=1.5 indicates that downward departures are 1.5 times as likely in  district B as in district A.
We conducted four regression analyses. First, we conducted two  regression analyses that estimated the likelihoods that drug sentences fell  below an applicable guideline range due to either prosecutors’ substantial  assistance motions or for other reasons before and after controlling for  offense and offender characteristics. Second, we conducted two  regression analyses that estimated the likelihoods that drug sentences that  carried a mandatory minimum fell below an otherwise applicable  mandatory minimum due to either substantial assistance or other reasons  before and after controlling for offense or offender characteristics.
section_title: Limitations
paragraphs: Our work was limited to drug sentences imposed during fiscal years 1999- 2001, and excluded drug cases in that year that lacked information on  whether the case departed from the guidelines (4 percent of all drug  cases). We also excluded cases for which there was insufficient  information to indicate whether the sentence involved was below a  mandatory minimum (0.7 percent of all mandatory minimum drug cases),  and were unable to identify whether 7 percent of the cases that fell below  the mandatory minimum, and did not involve substantial assistance,  involved the use of the safety valve provision. Further, our ability to  control for differences in the likelihood of sentences departing from the  guidelines, or falling below a mandatory minimum, was also restricted to a  reasonably small number of characteristics for which we had data and was  affected by the amount of missing data on those characteristics. Empirical  data on all factors that could influence sentencing were not available, and  so an analysis that could fully explain why sentences varied was not  possible.
Our analyses were also limited to determining whether sentences fell  below a guideline range or a mandatory minimum, and we did not  investigate whether there were differences across circuits or districts in  how far below a guideline range minimum or a mandatory minimum the  sentences fell. Nationwide, the average (mean) minimum sentence length,  under the guidelines, for drug sentences that departed downward for  substantial assistance reasons was 108 months (or about 9 years). Those  sentences were reduced as a result of the substantial assistance motion,  on average, by 53 months, and the resulting sentence was, on average, 49  percent of the average lowest sentence drug offenders otherwise would  have received under the guidelines. The average minimum sentence  length under the guidelines for drug sentences that departed downward  for reasons other than substantial assistance was 60 months (or 5 years).  Those sentences were reduced, on average, by 22 months, and the  resulting sentence was, on average, 57 percent of the average lowest  sentence drug offenders otherwise would have received under the  guidelines.
Nearly all of the mandatory minimum drug sentences were for 5 years  (48 percent) or 10 years (49 percent). The 5-year mandatory minimum  sentences that were reduced for substantial assistance were reduced by an  average of 33 months, resulting in an average sentence that was 45 percent  of the mandatory minimum. The sentences lowered for other reasons,  (primarily the safety valve), that would otherwise be subject to a 5-year  mandatory minimum were reduced by an average of 26 months, resulting  in an average sentence that was 57 percent of the mandatory minimum.  The 10-year mandatory minimum sentences that were reduced for  substantial assistance were reduced by an average of 63 months, resulting  in an average sentence that was 47 percent of the mandatory minimum.  The sentences lowered for other reasons, (primarily the safety valve), that  would otherwise be subject to a 10-year mandatory minimum were  reduced for other reasons by an average of 52 months, resulting in an  average sentence that was 57 percent of the mandatory minimum.
We also did not attempt to determine, for those sentences that fell within  the guideline range, across circuits and districts whether sentences fell  more frequently at the lower or higher end of the guideline range.  However, overall, 72 percent of drug sentences that were within the  guidelines range and did not depart were at the bottom of the range.
section_title: Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range or An Otherwise Applicable Mandatory Minimum
paragraphs: This appendix provides information on the percent of federal drug  sentences that fall below an applicable guideline range or an otherwise  applicable mandatory minimum. We show in tables 5 and 6 the variability  across circuits and districts in the percentages of drug sentences that were  (1) above the guidelines range, (2) within the guidelines range, (3) below  the range due to substantial assistance, and (4) below the range for other  reasons. We then show in tables 7 and 8 the variability across circuits and  districts in the percentages of mandatory minimum drug cases that  resulted in sentences (1) at or above a mandatory minimum sentence,  (2) below a mandatory minimum due to prosecutorial motions for  substantial assistance, and (3) below the mandatory minimum for other  reasons.
Table 5 shows that the percentage of upward departures from the  sentencing guidelines for drug cases in fiscal years 1999–2001 was similar  and exceedingly small across all 12 circuits. However, the percentages of  within range sentences and downward departures varied substantially  across circuits. The percentage of all drug sentences that were within the  guidelines range varied from 34 percent in the Ninth Circuit to 69 percent  in the First and Fifth Circuits. The percentage of drug sentences that  involved downward departures for substantial assistance varied from  18 percent in the Ninth Circuit to 45 percent in the Third Circuit, and the  percentage that resulted in downward departures for other reasons varied  from 4 percent in the Fourth Circuit to 47 percent in the Ninth Circuit. The  Ninth Circuit was the only circuit in which the percentage of departures  for other reasons exceeded 20 percent and the only circuit in which  departures for other reasons were more common than departures for  substantial assistance.
Table 6 reveals that the percentages of sentences within the guidelines  range and the percentages of sentences departing downward from them  notably differed across the 94 districts, even in some cases among districts  within the same circuit.
There were 6 districts in which the percentage of sentences departing  upward from the guidelines exceeded 1 percent of all cases—Wisconsin  Western (1.3 percent), Iowa Northern (1.3 percent), California Northern  (1.5 percent), Guam (1.2 percent), Oklahoma Eastern (1.4 percent), and  Georgia Middle (1.1). The percentage of sentences within the guidelines  range varied substantially, from 17 percent in the California Southern  District to 90 percent in the Illinois Southern District. Fewer than 10  percent of the sentences departed downward for substantial assistance in  Puerto Rico (7 percent), Rhode Island (9 percent), Virginia Eastern (8  percent), West Virginia Northern (9 percent), Illinois Southern (6 percent),  and Oklahoma Eastern (5 percent). At the same time, the percentage of  cases departing downward for substantial assistance exceeded 50 percent  in 16 districts, and was highest in the North Mariana Islands (71 percent),  New York Northern (68 percent), North Carolina Western (62 percent),  and Idaho (62 percent) Districts. Sentences departing downward for other  reasons represented only 3 percent or less of all sentences in 24 districts  but over 20 percent of the sentences in 10 districts;  these other downward  departures were especially common in New York Eastern (32 percent),  Oklahoma Eastern (39 percent), Arizona (58 percent), and California  Southern (70 percent) Districts. While the percentages of other downward  departures were fairly similar and involved 10 percent or fewer of all cases  in the various districts in the Sixth and Seventh Circuits, the range in the  percentage of other downward departures were sizable across the districts  in the Second Circuit (5 percent to 32 percent), Ninth Circuit (none to  70 percent), and Tenth Circuit (3 to 39 percent).
Table 7 shows the differences across circuits in the percentages of  mandatory minimum drug sentences between 1999 and 2001 that were at  or above an applicable mandatory minimum, below an otherwise  applicable mandatory minimum due to substantial assistance, and below  an otherwise applicable mandatory minimum for other reasons. The  percentage of mandatory minimum sentences that were at or above an  applicable mandatory minimum sentence ranged from 35 percent in the  Ninth Circuit to 64 percent in the Fourth Circuit. The percentage of  sentences that fell below an otherwise applicable mandatory minimum  due to substantial assistance motions ranged from 19 percent in the First  Circuit to 40 percent in the Third Circuit. The percentage of mandatory  minimum sentences that fell below an otherwise applicable mandatory  minimum sentence for other reasons ranged from 12 percent in the Fourth  Circuit to 38 percent in the Ninth Circuit.
Table 8 provides these same percentages, classified by districts rather than  circuits, and shows that variability in the sentencing of mandatory  minimum offenders is considerable across the 94 districts. The percentage  of sentences falling below an otherwise applicable mandatory minimum  for substantial assistance reasons was very different across districts,  ranging from less than 10 percent of all mandatory minimum sentences in  7 districts to over 50 percent in 9 districts. The percentage of sentences  falling below an otherwise applicable mandatory minimum for other  reasons also varied greatly across districts, from less than 10 percent of all  mandatory minimum sentences in 11 districts to 50 percent or more in  3 districts.
section_title: Appendix III: Likelihood of Sentences Falling below a Guideline Range or an Otherwise Applicable Mandatory Minimum
paragraphs: This appendix provides odds and odds ratios to describe the differences  across circuits and districts in sentences falling below a guideline range or  an otherwise applicable mandatory minimum for substantial assistance  and other reasons, both before and after controlling for differences in  offender and offense characteristics. In the left columns of tables 9 and 10,  we show the odds on substantial assistance departures across circuits and  districts and ratios indicating differences across circuits and districts,  before and after we adjust for characteristics of offenses and offenders. In  the right columns of tables 9 and 10, we show the odds on other  downward departures across circuits and districts and ratios indicating  differences between them, before and after we adjust for characteristics of  offenses and offenders. In the comparisons across circuits, we used the  Eighth Circuit as the reference category, so the odds ratios reflect how  much more or less likely other circuits were than that circuit to depart in  sentencing offenders. In comparisons across districts, the Minnesota  District was used as the reference category. The offense and offender  characteristics we controlled for were described earlier in appendix I. The  ratios that estimate differences before and after adjusting for these  characteristics were derived from logistic regression models. We focus on  adjusted ratios in the following discussion, since they provide us with our  best estimates of differences across circuits and districts after taking into  account the differences in the drug cases handled across jurisdictions.
Table 9 shows that both the odds on substantial assistance departures and  other downward departures varied substantially across circuits. After  adjusting for differences across circuits in offense and offender  characteristics, the odds on substantial assistance departures were  significantly greater in three circuits than the Eighth Circuit. In the Third  Circuit, for example, substantial assistance departures were 2.2 times as  likely as in the Eighth Circuit. Four circuits were not significantly different  from the Eighth Circuit in terms of the likelihood of sentences departing  for substantial assistance, and in the remaining 4 circuits substantial  assistance departures were significantly less likely. In the First Circuit, for  example, substantial assistance departures were less likely by a factor of  0.64, or 36 percent less likely, than in the Eighth Circuit. The fact that  some circuits are less likely than the Eighth Circuit while others are more  likely than the Eighth Circuit to depart for substantial assistance implies  that some differences between other circuits are larger than those  explicitly indicated by these ratios. For example, these ratios imply that  substantial assistance departures in the Third Circuit are 2.2/0.64=3.4  times as likely as in the First Circuit.
Table 9 also shows that for those sentences that do not involve substantial  assistance departures, (and again after adjusting for offense and offender  characteristics), other downward departures are significantly more likely  in 4 circuits than in the Eighth Circuit, significantly less likely in 6 circuits  than in the Eighth Circuit, and no different in the other one. The fact that  other downward departures are 6.87 times more likely in the Ninth Circuit  than in the Eighth Circuit, but less likely by a factor of 0.37 in the Fourth  Circuit than in the Eighth Circuit, implies that such departures are  6.87/0.37 = 18.6 or 19 times as likely in the Ninth Circuit as in the Fourth  Circuit.
Table 10 shows that both the adjusted odds ratios on substantial  assistance departures and other downward departures also varied  substantially and significantly across districts. Substantial assistance  departures were significantly more likely in 41 districts than in the  Minnesota District. In the small Northern Mariana Islands District, for  example, substantial assistance departures were 10 times more likely than  in the Minnesota District, and in the large New York Northern District,  they were 5 times more likely. Twenty-three districts were not significantly  different from the Minnesota District in terms of the likelihood of  sentences departing for substantial assistance, and in the remaining 29  districts substantial assistance departures were significantly less likely. In  the Illinois Southern District, for example, substantial assistance  departures were less likely by a factor of 0.11, which implies that the  likelihood of substantial assistance departures were 9 times higher in the  Minnesota District than they were there. Other districts, these odds imply,  were even more disparate from one another. For example, these ratios  imply that substantial assistance departures in the New York Northern  District were 5.5/0.11=49.5 or 50 times more likely than in the Illinois  Southern District.
Table 10 also shows that for those sentences that do not involve  substantial assistance departures, other downward departures are  significantly more likely in 7 districts than in the Minnesota district,  significantly less likely in 62 districts than in the Minnesota district, and no  different in the remaining 23 districts. The fact that other downward  departures are 15 times more likely in the California Southern District than  in the Minnesota district, but less likely by a factor of 0.09 in the South  Carolina District than in the Minnesota District, implies that such  departures are 15/0.09 = 167 times as likely in the California Southern  District as in the South Carolina District.
Tables 11 and 12 pertain to mandatory minimum sentences and show that  substantial and often significant variation in the likelihood of sentences  falling below an otherwise applicable mandatory minimum exists even  after controls for differences in offense and offender characteristics  across circuits and districts. If we focus on the adjusted ratios in table 11  first, which estimate the differences among circuits after controls, we find  that there were some circuits in which the odds on sentences falling below  an otherwise applicable mandatory minimum due to substantial assistance  were significantly higher than in the Eighth Circuit, and others in which  those odds were significantly lower.
The same is true of the likelihood of sentences falling below an otherwise  applicable mandatory minimum for reasons other than substantial  assistance. The adjusted ratios in table 11 suggest that the biggest  difference in the likelihood of mandatory minimum sentences falling  below an otherwise applicable mandatory minimum due to substantial  assistance involved the Third and First Circuits (such sentences were  2.29/0.67=3.4 times more likely in the former circuit than in the latter),  while the biggest difference in the likelihood of mandatory minimum  sentences falling below an otherwise applicable mandatory minimum for  reasons other reasons, such as the safety valve, involved the D.C. vs. the  Fourth and Sixth Circuits (such sentences were 2.55/0.94=2.7 times more  likely in the former circuit than in the latter two).
Table 12 shows, similarly, that in many districts judges were much more  likely than in the Minnesota district to issue sentences below a mandatory  minimum to offenders facing a mandatory minimum, both for reasons of  substantial assistance and for other reasons; and, at the same time, judges  in many other districts were less likely to do so, overall.
section_title: Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at Circuit and District Court Levels Limited
paragraphs: Overall, the data the U.S. Sentencing Commission (USSC) has received from district courts and judges were generally sufficient for our analyses  of downward departures and mandatory minimum sentences across  circuits and for most districts. Missing data due to missing sentencing  documents or information posed few limitations for our analysis.  However, opportunities for improvement exist.
subsections: section_title: Documents USSC Requests from District Courts
paragraphs: Under the authority of the Sentencing Reform Act of 1984, USSC required  courts to forward to it the following five sentencing documents in every  guidelines case. The PROTECT Act of 2003 codifies this data collection requirement:  the Judgment and Commitment Order (J&C);  the Statement of Reasons (SOR);  the Pre-sentence Report (PSR);  any written plea agreements, if applicable; and  all indictments or other charging documents.
Under the PROTECT Act, courts are to send to USSC a “Report of  Sentence” enclosing the required sentencing documents within 30 days of a judgment, and the Chief Judge in every district is to ensure that their  courts do so.
section_title: How USSC Uses Documents to Create Its Database
paragraphs: Of the five sentencing documents submitted by district courts, USSC  officials told us they rely primarily on the J&C, SOR, and PSR to obtain the  sentencing information that USSC staff code into USSC database. From  the J&C, USSC obtains data on the sentence, including the number of  months of any imprisonment, the statute of conviction, and whether any  mandatory minimum sentence applied. USSC officials also said that they  rely almost exclusively on the SOR to obtain data on the basis for the  sentence, such as whether the sentence imposed fell within or outside the  applicable sentencing guidelines range as determined by the court, the  reason(s) for any departure, and whether a substantial assistance motion or safety valve adjustment was used. If the SOR is missing, USSC coding  procedures have required document analysts to record the departure  status as missing, although other documents, such as the plea agreement,  may have information that indicate whether and why the sentence  departed. USSC is initiating some changes in its coding procedures as  discussed below. From the PSR, which is drafted by a district probation  officer, USSC obtains demographic and other background information  about offenders, an initial sentencing recommendation according to the  guidelines, and other sentencing information such as whether the offense  of conviction had a mandatory minimum (should this information not be  noted in the J&C), and whether the safety valve could potentially be  applied (in certain limited circumstances where this information has not  been recorded in a SOR).
section_title: USSC Receives Most of Requested Sentencing Documents
paragraphs: Our analysis shows that district courts provided these five sentencing  documents to USSC for the great majority of drug sentences imposed in  fiscal years 1999-2001. Of 72,283 drug sentences imposed during this  period, district courts submitted between 96 and 99 percent of the three  key sentencing documents– the J&C (99 percent), SOR (96 percent), and  PSR (98 percent)—from which USSC obtains sentencing data. According  to USSC data, a lower percentage of plea agreements (89 percent) and  indictments (87 percent) were submitted during this time period. During  the period of our review, USSC did not primarily rely on these two  documents for departure information. Table 13 shows, by circuit, the  percentage of each type of sentencing document USSC did not receive in  fiscal years 1999-2001.
Among the 12 circuits, the rate of missing SORs—the principal document  used to determine the reason for a sentencing departure—ranged from  less than 1 percent to about 7 percent. Two of the 4 circuits in which the  highest number of drug sentences were imposed were also missing the  highest percent of their SORs–the 9th Circuit at 6.6 percent and the Fourth  Circuit at 7.4 percent. A circuit’s average can mask wide differences  among the districts within the circuit. For example, the percentages of  missing SORs among districts in the Ninth Circuit ranged from less than  1 percent to 58 percent and in the Fourth Circuit from less than 1 percent  to 20 percent.
section_title: USSC Takes Steps to Reduce Missing Document Rate
paragraphs: USSC reviews the documents it receives from the district courts and  annually sends a letter to each district court identifying the cases in which  documents appear to be missing. Additionally, in its annual report, USSC  discloses the overall document submission rate for all criminal cases for  the J&C, SOR, and PSR documents. USSC also attempts to identify  guidelines cases for which the courts may not have submitted any  sentencing documents. By linking data from a database maintained by  AOUSC with the data on cases in its database, USSC develops a list of  cases for which it has not yet received documentation. USSC sends this  list of cases to the relevant district courts and asks them to review the list  and forward any documents USSC should have received.
section_title: Missing or Difficult to Interpret Information Can Affect Analysis of departure data were missing for 1 percent to 7 percent of drug sentences Departures
paragraphs: In addition to missing sentencing documents, the documents USSC  received in fiscal years 1999-2001 had missing information or information  that was difficult to interpret. As shown in table 14, among the circuits  imposed in fiscal years 1999-2001. In addition, for 4 percent to 15 percent of sentences, information was missing on whether the safety value was  used as the basis for sentencing below a mandatory minimum.
Nationally, of the 72,283 federal drug sentence imposed in fiscal years  1999-2001, 3,004 (4 percent) were coded as missing information necessary  to determine whether the sentence departed from an applicable guideline  range. Of these, 2,118 sentences were missing information because the  SOR had not been received, and for 570, the SOR was received but did not  include departure information.
Missing or unclear data also limited our ability to determine when the  safety valve was used as the basis for sentencing below an otherwise  applicable mandatory minimum. For example, in our preliminary analysis,  we found that of the 11,256 federal drug sentences for which the offense of  conviction carried a mandatory minimum and fell below that minimum,  about 1,600 (14 percent) were coded by USSC as falling below the  applicable mandatory minimum but not involving either the safety valve or  substantial assistance. We discussed this issue with USSC. After reviewing  the underlying documents used for coding these 1,600 sentences, USSC  determined that over 900 sentences were miscoded. These miscoded  sentences were recoded in a variety of ways, including some coded as  involving the safety valve, some coded as involving substantial assistance,  some coded as having a changed drug quantity that affected the applicable  mandatory minimum, and some coded as missing safety valve information.  USSC did not recode 681 sentences; these sentences remained coded as  falling below a mandatory minimum but involving neither the safety valve  nor substantial assistance. In addition, safety valve information was  determined to be missing from 770 sentences for which the offense of  conviction carried and fell below a mandatory minimum. A USSC official  said that there is no specific prompt on the SOR asking for information on  the application of the safety valve or whether the offense of conviction  carried a mandatory minimum.
On the basis of our analysis, missing or incomplete sentencing information  is unlikely to affect analyses nationally or by circuit but could affect the  analysis of departures in districts where the missing documents or  information are concentrated. Missing or incomplete sentencing  information may also affect USSC’s records for individual judges and thus  USSC’s ability to provide accurate judge-specific sentencing analysis were  Congress to request this information under the auspices of the PROTECT  Act.
section_title: USSC Actions to Improve Coding
paragraphs: USSC officials told us that they have not generally followed-up with  district courts to obtain information that is missing from submitted  documents or is unclear (e.g., whether the safety valve provision was the  basis for a sentence below an applicable mandatory minimum). USSC staff  does not use information from one document to substitute for missing or  unclear information in another document. As a result of coding issues we  identified during this review, USSC plans to implement new quality control  and review procedures for sentences where information on the SOR is  missing, incomplete, or unclear. These include identifying common errors  for coding staff, using technology to develop automatic edit checks for  apparently contradictory coding information for a sentence (e.g., those  below an applicable mandatory minimum whose reason for departure is  not substantial assistance or the safety valve), and having a staff attorney  review sentences in which the coding supervisor is unable to determine  the appropriate coding.
section_title: Multiple Reasons Cited for Missing Documentation and Information
paragraphs: Officials from USSC, the AOUSC, and the Judicial Conference Committee  on Criminal Law cited several reasons that sentencing documents or  information on sentencing documents were missing. First, USSC and  AOUSC officials told us that some judges do not provide all the  documents, in part because judges may be unclear whether documents  under court seal or that pertain to individuals in the federal witness  protection program are to be forwarded to USSC.
Second, USSC relies almost exclusively on the SOR to determine whether  the sentence departed, met a mandatory minimum, or involved substantial  assistance. If the SOR is missing, USSC’s coding procedures require  document analysts to record the departure status as missing, even if other  documents, such as the plea agreement, suggests that a departure may by  recommended by the government. As a result, incomplete information  prevents USSC from collecting some sentencing data, as illustrated below  by two examples drawn from drug sentences imposed during fiscal years  1999-2001:
In one case, the SOR did not indicate the reason the court sentenced the  offender to 97 months—a sentence below the applicable 10-year (120  month) mandatory minimum. Without this information on the SOR, under  the coding conventions used, USSC document analysts could not record  substantial assistance as the reason that the sentence of 97 months fell  below a mandatory minimum even though the plea agreement (prepared  by the parties) and the PSR (prepared by the probation officer) indicated  that a substantial assistance motion was to have been made.
In another case, the SOR stated that the court was crediting the offender  for time served but failed to state the specific amount of time being  credited. Unable to determine the amount of time being credited, and thus  the sentence length being imposed, USSC document analysts could not  determine whether the sentence departed or met an applicable mandatory  minimum.
Third, judges report the information using different versions of the SOR  forms that can make consistent interpretation more difficult. For example,  some jurisdictions provide one-page, single-spaced narratives that report  the sentence and, in rare cases, others provide a transcript of the  sentencing hearing instead of an SOR. According to USSC officials,  interpreting multiple forms that report sentencing information in different  ways and in different locations complicates the process of coding  sentencing data such as departure status and use of the safety valve and  may lead to missing sentencing information. USSC officials stated the  single most effective step towards improving the completeness of data the  courts report and USSC’s ability to code it would be the increased use of a  standard SOR. The Judicial Conference at its September 2003 meeting  accepted revisions to the standard SOR. The Conference designated the  revised form as the mechanism by which courts comply with the  requirements of the PROTECT Act to report reasons for sentences to  USSC. The Committee plans to encourage judges to use it through  education about the benefits of its use, but the Chair of the Committee  stated that the Committee does not believe it has the authority to require  the use of the new SOR. Officials from AOUSC and the Committee said  they believe that with additional education judges will routinely use the  new standard SOR, resulting in more useful and higher quality data  reported to USSC.
Last, according to officials from AOUSC and the Criminal Law Committee,  judges and other court officials lack an awareness of how to complete the  SORs with a level of detail that would allow USSC to collect sentencing  information. The Committee official said that education for judges and  other court officials is needed on how to properly complete the SOR. In  addition, no feedback mechanism is in place to inform judges that  information on the SOR was incomplete or unclear to USSC and,  therefore, cases are coded as missing sentencing information. Although  USSC contacts the courts to request missing sentencing documents be  submitted, it does not provide a similar list of documents that contained  information coded as missing. Without knowing which cases are coded as  missing sentencing information, judges cannot clarify or complete  information needed by USSC.
While USSC and the Federal Judicial Center offer programs and  workshops on application of the guidelines to judges and other court  officials, no education programs are provided on how to complete the SOR  in ways that provide clear, complete information. Officials from USSC,  AOUSC, and Criminal Law Committee said that education on how to apply  increasingly complex guidelines has been their focus, not educating judges  and other officials to correctly complete the SOR. Officials also said that in  the future it would be possible to provide programs at judicial workshops  or through the Federal Judicial Center that educates judges and other  court officials on how to provide clear, complete reports on sentencing.
section_title: Other Downward Departures Do Not Solely Reflect Judicial Discretion
paragraphs: The category “other downward departures” generally thought to represent  judicial discretion may also reflect downward departures resulting from  prosecutorial discretion and initiative. In this report we classified  departures as either “substantial assistance” or “other downward”  departures. Substantial assistance departures can be viewed as a measure  of prosecutorial discretion because only the prosecutor has the authority  to initiate and recommend to the court that an offender be given a reduced  sentence for substantial assistance to the prosecution. Neither the judge  nor defense counsel may do so. The remaining departures, “other  downward departures,” are generally considered to be an indication of  judicial discretion. AOUSC officials suggested, however, that the category  “other downward departures” provides an imprecise measure of judicial  discretion. For example, AOUSC officials noted that some departures  classified in USSC database as other departures may actually arise from  agreements, particularly plea bargains, that either were initiated or  supported by the government. We did not confirm this statement with  federal prosecutors. USSC documents in its database up to three reasons  judges provide for an other downward departure. According to USSC  database for drug sentences in fiscal years 1999-2001, the first reason  provided for an other downward departure in 18 percent of the sentences  was the government’s fast track programs; in 16 percent, plea agreement;  and in 4 percent, deportation. Tables 15, 16, and 17 detail for drug  sentences the number and percent of other downward departures  associated with the first, second, and third reasons provided for those  departures.
section_title: Appendix VI: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: In addition to the persons named above, the following persons made key  contributions to this report: William W. Crocker, III, Christine Davis,  Barbara Hills, David Makoto Hudson, E. Anne Laffoon, William Sabol,  Doug Sloane, Wendy Turenne.