U. S. Sentencing Commission’s
2014 Annual Report
The United States Sentencing Commission is an independent agency in the judicial branch of the federal government. Its statutory duties include, but are not limited to:
- promulgating sentencing guidelines to be determined, calculated, and considered in all federal criminal cases;
- collecting sentencing data systematically to detect new criminal trends, to determine if federal crime policies are achieving their goals, and to serve as a clearinghouse for federal sentencing statistics;
- conducting research on sentencing issues and serving as an information center for the collection, preparation, and dissemination of information on federal sentencing practices; and
- providing specialized training to judges, probation officers, staff attorneys, law clerks, prosecutors, defense attorneys, and other members of the federal criminal justice community on federal sentencing issues, including application of the guidelines.
The Commission sits at the intersection of all three branches of government and synthesizes the interests of the three branches to effectuate sound federal sentencing policy. Consistent with statutory guidance and Supreme Court case law, the Commission has continued its core mission to promulgate new guidelines and guideline amendments in response to legislation, sentencing data, and information and feedback from sentencing courts, Congress, the Executive Branch, federal defenders, and others in the federal criminal justice system. The Commission continues to expand its specialized training on federal sentencing issues, including application of the guidelines, to federal judges, probation officers, staff attorneys, law clerks, prosecutors, defense attorneys, and others.
In fiscal year 2014, the Commission has taken a leading role in reducing costs associated with rising prison populations, increasing the fairness and efficiency of sentencing, and improving recidivism outcomes, thereby saving additional funds. The Commission’s efforts are calibrated to ensure public safety and provide that the statutory purposes of sentencing are achieved. The Commission will continue these efforts going forward and is also prioritizing finding ways to make the guidelines work better, promoting efficiency and effectiveness, and reducing unnecessary litigation.
Furthermore, the Commission refines its data collection, analysis, and reporting efforts on an ongoing basis to provide up‐to‐date data about federal sentencing practices and trends. The Commission disseminates sentencing information in real time and in new ways to fulfill its statutory duties to monitor the operation of the guidelines and to advise Congress on federal sentencing policy. The Commission also continues to analyze major sentencing issues and report its findings and recommendations to Congress, as well as to respond to requests from Congress for data and analysis.
As the demand for Commission work‐product, information, and services continues to increase, the Commission continues to maximize its existing resources and find increasingly efficient and effective ways to fulfill its statutory duties.
Sentencing Policy Development
In light of the increasing costs of incarceration and the ongoing overcapacity of the federal prison system, beginning in fiscal year 2014, the Commission made implementing its mandate at Section 994(g) of the Sentencing Reform Act, which requires that the guidelines “minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons,” an overarching policy priority. The federal prison population has more than tripled since 1991, and the Bureau of Prisons was 32 percent overcapacity in fiscal year 2014. Because drug offenders constitute about a third of the offenders sentenced each year and a majority of offenders in federal prison, in fiscal year 2014 the Commission reexamined the guideline covering federal drug trafficking offenses.
The Commission conducted hearings on how the guidelines account for the quantity of drugs involved in federal drug trafficking offenses, analyzed sentencing and recidivism data, considered legislative and guideline developments, reviewed tens of thousands of letters from the public, and carefully considered input from members of Congress and other key stakeholders and other relevant information. This exhaustive re‐examination resulted in the promulgation of an amendment that somewhat reduces the guideline penalties based on the quantity of drugs involved in an offense. The amendment is anticipated to affect approximately 70 percent of federal drug trafficking defendants, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months.
In addition to addressing prison populations and costs, these changes respond to statutory changes Congress has made and developments in the guidelines in the years since the drug guideline levels were originally set. Specifically, the proliferation of enhancements in the drug guideline since that guideline was first established for factors like violence, firearms, and aggravating role mean that quantity, while still an important proxy for seriousness, no longer needs to be as central to the calculation.
Also, the drug guideline levels were originally set above the mandatory minimum penalties so that, even for the lowest level drug offenders with minimal criminal history, there would still be a real benefit to accepting responsibility. Subsequently, the Commission worked with Congress to create the “safety valve,” which provides for sentences below mandatory minimum levels for low‐level offenders and gives those offenders a greater benefit for accepting responsibility.
The Commission carefully weighed public safety concerns and, based on past experience, existing statutory and guideline enhancements, and expert testimony, concluded that the amendment should not jeopardize public safety. To the contrary, the Commission received testimony from the Department of Justice and other stakeholders that the amendment would promote public safety by permitting scarce resources otherwise dedicated to housing prisoners to be used to reduce overcrowding, enhance programming designed to reduce the risk of recidivism, and to increase law enforcement and crime prevention efforts.
Section 994(u) of the Sentencing Reform Act required that the Commission also consider whether to make the drug amendment retroactive, and after extensive consideration, the Commission decided to make the amendment retroactive, with a one‐year delay in implementation. In reaching this decision, the Commission was informed by its study of recidivism following retroactive application of its 2007 amendment similarly reducing guideline sentences for crack cocaine offenses. That study suggests that modest reductions in drug penalties can be accomplished without an increase in recidivism.
However, the Commission was very much aware of public safety concerns, raised by some law enforcement organizations. The decision to delay implementation of retroactivity was designed to address these concerns by allowing judges more time to carefully review every case to determine whether a reduction is appropriate, ensuring that the Bureau of Prisons can give every offender transitional services, including halfway houses, that help increase the chances of successful reentry into society, and allowing the Office of Probation and Pretrial Services adequate time to prepare so that released offenders can be effectively supervised.
Retroactive application of the 2014 drug amendment is anticipated to have significant impact on reducing prison costs and overcapacity, and the impact will come much more quickly than from a prospective change alone. More than 40,000 offenders may be eligible for reduced sentences, and these offenders are eligible to have their sentences reduced by an average of 25 months or 18.8 percent. This reduction is estimated to result over time in a savings well over 70,000 prison bed years. The Commission hopes the amendment will lay the groundwork for more comprehensive action by Congress in the future, and the Commission’s Chair testified to that effect before the House Judiciary Committee’s Over‐Criminalization Task Force in June 2014.
In fiscal year 2014, the Commission also implemented the Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113–4, a major piece of legislation impacting a variety of offenses in Indian Country and beyond. It also resolved circuit conflicts in Courts of Appeals relating to the guidelines, including differences in calculating tax loss under the guidelines and the circumstances under which a defendant receives full credit for acceptance of responsibility.
Going forward, the Commission has prioritized examining ways the guidelines can be made fairer, more efficient, and more effective. For example, it continued its multi‐year review of economic crimes, which will likely result in guideline amendments, and convened an expert roundtable discussion on application issues caused by differing statutory, guideline, and case law definitions of crimes of violence. Differing and complex statutory and guideline definitions have caused significant litigation in federal sentencing, draining judicial resources and causing increased uncertainty and lack of uniformity in sentencing.
The Commission also continued work on a multi‐year study on recidivism of federal offenders. In fiscal year 2013, the Commission held a recidivism roundtable where it heard from a variety of experts on methodology, quantitative statistical analysis, and program evaluation. The recidivism study will draw on partnerships across the federal criminal justice system and will combine data from the Commission, the Department of Justice, and the Administrative Office of the U.S. Courts to develop a comprehensive trajectory of offenders prior to incarceration, during incarceration, and following reentry into the community. The Commission believes this research will contribute significantly to the consideration of federal sentencing policy by Congress and others going forward.
In addition, in fiscal year 2014, the Commission undertook a study of federal sentencing practices pertaining to imposition and violations of conditions of probation and supervised release, including possible consideration of amending the relevant provisions in the Guidelines Manual. The Commission believes this research may inform congressional consideration of issues including identification of conditions of supervised release that are correlated with lower recidivism.
Also in fiscal year 2014, the Commission began work on a review of the use of risk‐assessment instruments in the federal criminal justice system in order to be able to provide the Commission’s data and expertise to Congress, the Office of Probation and Pretrial Services of the Administrative Office of the U.S. Courts, and researchers at the Federal Judicial Center. The Commission’s study is aimed at considering these tools in the context of the goals and requirements of the Sentencing Reform Act of 1984 that sentences remain neutral with respect to race, gender, and socioeconomic status, among other consideration.
In fiscal year 2014, the Commission focused on making its data and research more readily accessible in more easily understood ways to Congress, the courts, the public, and the press. To this end, the Commission expanded its Quick Facts series first introduced in fiscal year 2013. The Quick Facts series is designed to provide the concise facts about a single area of federal crime in an easy‐to‐read, two-page format. The Commission released fourteen publications in the Quick Facts series in fiscal year 2014 covering topics including illicit drugs, Native American offenders, female offenders, alien smuggling, and national defense offenses. The Commission will continue to release new Quick Facts publications and update them regularly.
In fiscal year 2014, the Commission also introduced a series of relatively short reports on various topics of interest. For example, the Commission released a brief publication about recidivism in connection with 2007 amendments that reduced sentences for crack offenders. The Commission will continue this short publication series going forward.
The Commission has also continued to work with Congress on its reports from fiscal years 2011 and 2013 on mandatory minimum penalties, child pornography offenses, and disparity in sentencing. These comprehensive reports provide policy‐makers with relevant and important sentencing information and data, as well as the most relevant social science research and case law.
The information and data contained in these reports has contributed to the consideration of federal sentencing policy by Congress and others in recent years and will likely continue to do so. In particular, during the 113th Congress the Commission worked to implement recommendations from its report on statutory mandatory minimum penalties and updated those recommendations to address legislation before both the House and Senate. The Commission stands ready to work with the 114th Congress and others on steps that can be taken regarding the findings and recommendations in those reports.
Collecting and Reporting Sentencing Data
Each year the Commission collects data regarding every felony and class A misdemeanor offense sentenced during that year. Sentencing courts are statutorily required to submit five sentencing documents to the Commission within 30 days of entry of judgment in a criminal case: the charging document, the plea agreement, the presentence investigation report, the judgment and commitment order, and the statement of reasons form. The Commission analyzes these documents and collects information of interest and importance to policy‐makers and the federal criminal justice community.
The Commissionʹs data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission will receive documentation on more than 350,000 documents for almost 76,000 original sentencings for fiscal year 2014. To put this caseload in perspective, in fiscal year 1995, the Commission received documentation for 38,500 cases sentenced under the guidelines.
In fiscal year 2014, the courts reported 75,836 felony and Class A misdemeanor cases to the Commission. This represents a decrease of almost 4,200 cases from the prior fiscal year. The largest reduction was in immigration cases, which fell by more than 2,700 cases from fiscal year 2013, a decrease of 10.9 percent. Drug trafficking cases decreased by 4.2 percent.
The race of federal offenders remains largely unchanged from prior years. In fiscal year 2014, 52.0 percent of all offenders were Hispanic, 23.6 percent were White, 20.3 percent were Black, and 4.2 percent were of another race. Non‐U.S. citizens accounted for 42.0 percent of all offenders, a slight decrease, compared to 44.9 percent in fiscal year 2013.
Drug cases accounted for the largest single group of offenses in 2014, comprising 31.7 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 81.5 percent of all cases reported to the Commission in fiscal year 2014.
Among drug cases, offenses involving methamphetamine were most common, accounting for 26.2 percent of all drug cases. This is the first year that cases involving that methamphetamine were the most common. Drug sentences decreased for all drug types in fiscal year 2014. The largest reduction in sentences occurred in cases involving powder cocaine and crack cocaine, with average sentences decreasing by seven months for both types of crime. The largest percentage decrease in drug sentences occurred in marijuana cases, where the average sentence decreased by 12.2 percent from fiscal year 2013. Some portion of these reductions could be attributable to the reduction in the rate at which offenders were convicted of a drug offense carrying a mandatory minimum penalty. In fiscal year 2014, 50.1 percent of offenders were convicted of such an offense, compared to 62.2 percent of drug offenders in fiscal year 2013.
Overall, 78.5 percent of all sentences imposed in fiscal year 2014 were either within the applicable guidelines range, above the range, or below the rage at the request of the government. Slightly less than half (46.0%) of all cases were sentenced within the guidelines range, compared to 51.2 percent in fiscal year 2013. In fiscal year 2014, 21.4 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 18.7 percent in fiscal year 2013.
When compared to data for earlier years, the 2014 data shows a noticeable decrease in the within range rate of sentences imposed in drug trafficking cases, and an increase in the rates for both government‐sponsored below range sentences and non‐government sponsored below range sentences in those cases. This decrease appears to be attributable to anticipation of the Commission’s 2014 drug amendment lowering the base offense levels for drug trafficking case.
On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys authorizing prosecutors to not object to a defense request for a two‐level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. This guidance was provided despite the fact that the Commission had not yet voted to adopt the amendment, and even if adopted, the amendment would not be effective until November 1, 2014 after a six month period of congressional review. Judges and probation offices have informed the Commission that in some districts the prosecutors themselves requested that the court depart from the sentencing range calculated under the Guidelines Manual then in effect and impose a sentence that was two levels below that range.
The data the Commission is reporting for fiscal year 2014 appears to reflect those practices. See 2014 Sourcebook of Federal Sentencing Statistics, at Table 27A. A comparison of the sentences imposed before and after the Department of Justice announced its policy shows the impact of that policy change. From October 1, 2013 up to March 12, 2014, the rate at which drug trafficking sentences were within the applicable guidelines range was 34.8 percent; however, after March 12 the rate fell to 21.1 percent. The Commission expects that these decreases will reverse in fiscal year 2015 as the Guidelines Manual for that fiscal year incorporates the changes made by the 2014 drug amendment.
The Commission also collects real‐time data from the courts on retroactive application of its permanent amendment implementing the Fair Sentencing Act of 2010, Pub. L. No. 110–220. The guideline amendment took effect on November 1, 2011.
As of December 2014, the Commission had collected data on approximately 14,000 cases in which a modification of the sentence imposed was sought under the 2011 amendment to the sentencing guidelines that implemented the provisions of the Fair Sentencing Act and which the Commission voted to retroactively apply to persons sentenced before the date of that amendment. The Commission anticipates eventually receiving documentation on more than 15,000 motions for retroactive application of the 2011 crack cocaine amendment. These documents and original research will form the basis for a study on implementation of the Fair Sentencing Act in fiscal year 2015 as contemplated by the Act, which requires the Commission to submit a report to Congress five years after its enactment (August 3, 2010).
The Commission has also begun collecting data on retroactive application of the 2014 drug amendment. Beginning November 1, 2014, judges were able to review sentences imposed prior to that date to determine if offenders’ sentences should be reduced consistent with the 2014 drug amendment. Offenders will not be eligible for release from Bureau of Prisons custody until November 1, 2015. The Commission anticipates receiving documentation on more than 40,000 motions for retroactive application of the 2014 drug amendment.
The Commission continually updates and modernizes the system that enables sentencing courts to submit documentation directly to the Commission electronically. In recent years, the Commission advanced from an internal electronic data transmission submission system to a web‐based system and improved its processes related to the receipt and analysis of sentencing data. By the end of fiscal year 2014, 79 districts were using the web‐based system.
The Commission continues to work to develop means to automatically extract some data fields from court documents to improve the efficiency of its data collection and to expand the type of information the Commission can collect and analyze on a routine basis. The Commission began to collect some data through this automated means in fiscal year 2014, and will continue to do so going forward.
The Commission makes its sentencing data available to the public in several ways. Analyses of the data extracted from the sentencing documents it receives are reported in this Annual Report and Sourcebook of Federal Sentencing Statistics, which is available in print and on its website. In order to provide the timeliest information on national sentencing trends and practices, the Commission also disseminates on its website key aspects of this data on a quarterly basis and provides trend analyses of the changes in federal sentencing practices over time.
The Commission continued to improve and expand use of its Interactive Sourcebook of Federal Sentencing Statistics. The Interactive Sourcebook allows users to recreate and customize tables and figures, for example by circuit, district, or state, and has improved the transparency and accessibility of the Commission’s sentencing data to the public. Additionally, the Interactive Sourcebook provides analyses not found elsewhere, including analyses of sentence length by the primary guideline the court used at sentencing, amount of loss in fraud cases, and age of offenders in drug cases for each major drug type. In fiscal year 2014, additional analyses were added to this resource, including several new figures that examine trends in sentencing data over time.
As required by 28 U.S.C. § 994(g) and 18 U.S.C. § 4047, when the Commission considers amendments to the guidelines, it considers the impact of these amendments on the federal prison population. Since fiscal year 2012, the Commission has made its prison and sentencing impact analyses available to the public on its website. In addition, the Commission is asked often by Congress to complete prison and sentencing impact assessments for proposed legislation.
The Commission often is asked by Congress to complete prison and sentencing impact assessments using real‐time data of sentencing trends related to proposed and pending legislation. These assessments are often complex and time‐sensitive and require highly‐specialized Commission resources. In addition, the Commission responds to more general data requests from Congress on issues such as drugs, immigration, fraud, and sex offenses and provides district, state‐wide, and circuit data analyses to House and Senate Judiciary Committee members and, on an as‐requested basis, to other members of Congress.
The Commission also responds to requests for data analyses from federal judges, including specific data requests relating to pending cases. In fiscal year 2014, the Commission responded to 77 such requests from the courts. The Commissionʹs ability to provide these analyses on demand and with real-time data provides a unique and helpful resource to judges.
Research is a critical part of the Commissionʹs overall mission. The Commissionʹs research staff regularly analyzes the current and prior fiscal yearsʹ data to identify the manner in which the courts are sentencing offenders and using the guidelines. The Commission routinely uses these analyses when considering proposed changes to the guidelines. Similarly, some analyses are published by the Commission as a resource for policy‐makers and the criminal justice community.
In May 2014, the Commission published an updated study on the recidivism of offenders whose sentences were reduced as a result of changes to the 2007 crack cocaine sentencing guidelines. The study compared the recidivism rates for offenders who were released early as a result of retroactive application of the 2007 crack cocaine amendment with a control group of offenders who served their full terms of imprisonment. The Commission detected no statistically significant difference in the rates of recidivism for the two groups of offenders over five years. This information represents some of the first high-quality, quasi‐experimental, federal recidivism data that uses sentence length as a dependent variable. This data was crucial to the Commission in making its fiscal year 2014 changes to the drug quantity table. It has also been used by members of Congress in their own evaluations of proposed sentencing legislation.
Training and Outreach
The Commission continues to fulfill its statutory duty to provide training and specialized technical assistance on federal sentencing issues, including application of the guidelines, to federal judges, probation officers, staff attorneys, law clerks, prosecutors, and defense attorneys by providing educational programs around the country throughout the year. In fiscal year 2014, Commissioners and Commission staff conducted training programs in all twelve circuits and approximately half of the 94 judicial districts providing instruction and guidance to more than 6000 judges, probation officers, prosecutors, defense attorneys and others throughout the year.
In September 2014, the Commission held its annual national training program in Philadelphia, Pennsylvania with more than 900 attendees, including many new federal district court judges. Commissioners and Commission staff also participated in numerous academic programs, symposia, and circuit conferences as part of the ongoing discussion of federal sentencing issues. The Commission anticipates that these expanded efforts and requests for training will continue.
The Commission also is relying on a more robust program of distance and online learning as part of cost containment efforts. The Commission has increased the number of sentencing‐related webinars and training videos on its website throughout fiscal year 2014 and will continue to do so.
The Commission’s seven voting members are appointed to staggered six‐year terms by the President with the advice and consent of the Senate. By statute, at least three of the commissioners shall be federal judges, and no more than four may be members of the same political party. The Attorney General, or the Attorney General’s designee, is an ex‐officio member of the Commission, as is the chair of the United States Parole Commission.
The Commission staff of approximately 89 employees is divided into the offices of the Staff Director, General Counsel, Education and Sentencing Practice, Research and Data, Legislative and Public Affairs, and Administration.
The Office of the Staff Director supervises and coordinates all agency functions. The director of each office reports to the staff director, who in turn reports to the chair.
The Office of General Counsel provides support to the Commission on a variety of legal issues, including the formulation and application of guidelines and guideline amendments, legislative proposals, and statutory interpretations. Legal staff members monitor district and circuit court application and interpretation of the guidelines and advise commissioners about statutes affecting the Commission’s work. The legal staff provides training support in conjunction with the Office of Education and Sentencing Practice.
In addition, the office performs all drafting services for the Commission, prepares the Guidelines Manual for printing, formally manages and maintains all papers and exhibits received by the Commission that constitute requests for Commission action on sentencing policy development, and coordinates the Commission’s policy initiatives.
The Office of Education and Sentencing Practice performs the lead role in teaching guideline application to judges, probation officers, prosecuting and defense attorneys, and other criminal justice professionals. The staff develops training materials, participates in the sentencing guideline segments of training programs sponsored by other agencies, works in conjunction with the Administrative Office of the U.S. Courts and the Federal Judicial Center to create webcasts that are aired on the Commission’s website, and helps inform the Commission about current guideline application practices. The office also operates a “HelpLine” to respond to guideline application questions from members of the court family.
The Office of Research and Data provides the Commission with statistical and other social science research and analyses on specific sentencing issues and federal crime generally. As part of its work, the office receives documents from the federal courts concerning the sentences imposed on individual offenders, analyzes and enters information from those documents into a comprehensive computer database created and maintained by the Commission, and creates annual datafiles of sentencing information. Individual offender datafiles (without individual identifiers) from fiscal year 2002 to the present are available on the website. Working with the Office of the General Counsel, the Office of Research and Data also collects information on organizations convicted of crimes and on appeals filed in individual and organizational cases.
As part of its ongoing work, the Office of Research and Data studies a wide variety of sentencing issues, including changes in the types and severity of federal crimes, changes in the demographic characteristics and criminal history of federal offenders, and sentencing trends in the federal courts. Using Commission data, the office creates periodic reports on federal sentencing practices and tracks the application of the sentencing guidelines. These reports provide data concerning the types of crimes committed, the offenders who commit those crimes, the punishments imposed, and the manner in which the sentencing guidelines were applied. The reports are distributed to the courts, Congress, the Executive Branch, and the public.
Using Commission data and other data sources, the Office of Research and Data provides short- and long‐term research and analysis for the Commission as part of its work to monitor the use of the guidelines and as it considers amending them. The office also provides projections of the effect on the federal prison population of proposed legislation and proposed guideline amendments. Additionally, the office provides analyses about specific criminal justice and guideline application issues at the request of Congress and the courts.
The Office of Legislative and Public Affairs serves as the Commission’s liaison with Congress on sentencing and appropriations matters, monitors Congress’s criminal law agenda, analyzes legislative proposals, drafts congressional testimony, and takes the lead role in responding to congressional inquiries. The office also provides services and information to other external entities, including the judiciary, Executive Branch agencies, academia, and advocacy groups. The office works closely with the Office of General Counsel on statutory interpretations and analyses.
The office is also responsible for the agency’s public information functions, responding to inquiries and requests for information from the media, the public, Congress, academia, and government agencies. The office plays a primary role coordinating the production, editing, printing, and dissemination of all Commission publications, including the Guidelines Manual and reports to Congress, and coordinating and updating the Commission’s website. The office also plays a key role in the coordination of Commission public hearings.
The Office of Administration provides general administrative support to commissioners and staff regarding budget and finance, contracting, personnel management, library reference services, facilities, and a variety of other office activities. This office also contains the Information Technology Unit, which maintains and services the Commission’s computer hardware and software.
During fiscal year 2014, the Commission used staff resources totaling approximately 89 workyears.
About two percent of staff resources was devoted to the commissioners’ offices, four percent to the Office of the Staff Director, six percent to the Office of Legislative and Public Affairs, ten percent to the Office of Education and Sentencing Practice, 16 percent to the Office of General Counsel, 19 percent to the Office of Administration, and 44 percent to the Office of Research and Data.
Budget and Expenditures
For fiscal year 2014, the Commission received an annual appropriation of $16,200,000 under Public Law 113–6. The Commission’s fiscal year 2014 annual financial plan was an increase of $563,049 (3.6%) over the sequestration‐affected FY 2013 appropriation. The Commission’s obligations by spending category for fiscal year 2014 are shown in Table 1. The Commission obligated $16,088,000 (99.3%) of the annual budget at the close of the fiscal year. Unobligated balances are retained and available to the Commission for obligation adjustments for an additional five‐year period.