Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001
Released: 2003-10-31T00:00:00

Letter

Background

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.

Federal Drug Sentences Departed Downward More Often Due to Substantial Assistance than for Other Reasons

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.

More Than Half of Drug Sentences Fell below an Otherwise Applicable Mandatory Minimum Sentence

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.

Likelihood of Sentences Departing Downward or Falling below a Mandatory Minimum Varied by Judicial Circuits and Districts

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.

Opportunities Exist to Improve Sentencing Data Collection and Reporting

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.

Conclusions

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.

Recommendations

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.

Agency Comments

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.

The Judicial Conference Committee on Criminal Law

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.

Impact of Fast Track Sentences on Analysis of Other Downward Departures

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.

Appendix I: Objectives, Scope, and Methodology

Objectives

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.

Scope

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.

Methodology

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.

Analyzing Numbers and Percents

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.

Estimating Departure Likelihoods

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.

Limitations

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.

Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range or An Otherwise Applicable Mandatory Minimum

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.

Appendix III: Likelihood of Sentences Falling below a Guideline Range or an Otherwise Applicable Mandatory Minimum

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.

Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at Circuit and District Court Levels Limited

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.

Documents USSC Requests from District Courts

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.

How USSC Uses Documents to Create Its Database

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).

USSC Receives Most of Requested Sentencing Documents

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.

USSC Takes Steps to Reduce Missing Document Rate

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.

Missing or Difficult to Interpret Information Can Affect Analysis of departure data were missing for 1 percent to 7 percent of drug sentences Departures

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.

USSC Actions to Improve Coding

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.

Multiple Reasons Cited for Missing Documentation and Information

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.

Other Downward Departures Do Not Solely Reflect Judicial Discretion

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.

Appendix VI: GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

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.