Tuesday, October 26, 2021

Sentencing Commission trying to pull a fast one on district judges

 This is crazy.  The Sentencing Commission released a sentencing tool called JSIN so that judges can see average sentences before making a decision.  The problem -- the statistics exclude all sentences in which the judge did not impose incarceration.  Michael Yeager discusses the flawed data in this article at Law360:

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.


Anonymous said...

Why don't they just get on with it and make LWOP the bottom of the guidelines for all offense? Seems to be the endgame.

Anonymous said...

There are multiple problems with this tool.

1. JSIN does not report average and median lengths of all sentences: JSIN’s average/median statistics only include prison sentences—not probation- or fine-only sentences. As David noted, individuals who share the same inputs (i.e., primary guideline, final offense level, criminal history category) but who received non-prison sentences are excluded from the average and median length statistics, which skews those results higher. The Commission’s datafiles include another measure of sentence length that counts probation and fine-only sentences as zero and incorporates them in the average/median, but that information is not provided in JSIN.
2. Most reported datapoints exclude sentences with §5K1.1 departures: JSIN excludes sentences with §5K1.1 departures from the following results: (1) the number of individuals initially reported to meet the selected criteria; (2) sentence type; and (3) average/median length of imprisonment statistics. Excluding §5K1.1 departures from JSIN’s average/median statistics skews results higher than if §5K1.1 cases were included.
3. JSIN does not filter on mandatory minimums or career offenders: if the selected criteria include sentences with mandatory minimums and/or career offender designations, JSIN includes those sentences in its results and does not provide an option to filter them out. Including these sentences skews results higher.
4. JSIN does not distinguish time-served sentences: time-served sentences are treated as prison sentences, counted as sentences of imprisonment, and factored into JSIN’s average/median imprisonment statistics even if no additional prison time was imposed at sentencing. Time-served sentences arguably have more to do with detention decisions and court delays than § 3553(a).
5. JSIN provides only national results: JSIN does not filter by district or circuit.
6. JSIN does not provide information on where within the guidelines range sentences fall: JSIN does not indicate the proportion of cases at the bottom, middle, or top of the guideline range.
7. JSIN does not provide the distribution of sentences imposed: if selected criteria yield sentences spanning from 1 day to 240 months, JSIN does not indicate how the sentences are distributed within this span (clustered toward bottom with few high outliers, evenly distributed, etc.).
8. JSIN relies on data that is not publicly available: independent assessment of JSIN results may not be possible because JSIN relies on “dynamic” data that appears to be different from the static data the Commission provides to the public in its annual datafiles.

Anonymous said...

Jesus. H. Ch.... WOW. Great article and info. This is absolutely nuts.

Michael Yaeger said...

Thanks for linking to my piece on Law 360!

For those interested in sentencing data more generally, or a database of more than 600,000 re-identified sentencing cases, I provide both through Empirical Justice (www.empiricaljustice.com ).