Our Federal Prisons Are Fueled By Drugs

That’s the takeaway from this report by the federal courts and U.S. Sentencing Commission.

To summarize, there are almost 200,000 people in federal prison today, and almost half of them (or 48%) are there for drugs. Almost all of them (93%) are men, and the vast majority are young, minority men. The breakdown is 35% Hispanic, 35% black, and 27% white.

Here are the top five types of cases:

  1. Drugs (48%)
  2. Guns (19%)
  3. Immigration (8%)
  4. Child pornography and sex offenses (7%)
  5. Major frauds (5.8%)

For fraud cases, the median dollar loss was $800,000, in case you were wondering.

For the drug cases, here’s the breakdown among drugs:

  1. Methamphetamine (32.8%)
  2. Powder cocaine (24.2%)
  3. Crack cocaine (20.9%)
  4. Heroin (9.5%)
  5. Marijuana (8.4%)

Finally, the report shows how often people are sentenced below, above, or within the range that’s recommended by the federal sentencing guidelines. Here’s a crash course on the guidelines if you want to know how they work.

  • Half were sentenced within the guideline range (50.4%)
  • A quarter were sentenced below the range with the government’s support (24.7%)
  • One-fifth were sentenced below the range without the government’s support (21%)
  • Relatively few were sentenced above the guideline range (3.9%)

The New DOJ Policy on Charging Decisions

Two weeks ago, the new U.S. Attorney General announced a new policy for charging and sentencing in criminal cases. Although the policy targets drug cases in particular, it applies to all federal prosecutions.

You can break it down into three parts.

First, prosecutors should file the “most serious, readily-provable” charges in each case. The most serious charges are those that carry the stiffest sentence, including any mandatory-minimum sentence. To deviate from this policy, prosecutors must get approval from a supervisor, document their reasons for it, and be able to point to “unusual facts.”

Second, in most cases, prosecutors should seek a standard sentence under federal sentencing guidelines. If they want to deviate from the guideline sentence, they must get supervisory approval and document their reasons in the file.

Third, prosecutors should discard inconsistent policies of the prior administration. Under prior policy, prosecutors still charged the most serious offense that was consistent with a defendant’s conduct and likely to yield a solid conviction. But they were also encouraged to evaluate cases individually to decide which charges to file, and they were told to seek sentences that were fair and proportional under all the circumstances.

In particular, prosecutors now must ignore two prior policies that tried to reduce harsh sentences in low-level, nonviolent drug cases. Under one policy, they were not to charge a specific drug quantity if it triggered a mandatory-minimum sentence, and they were to avoid charging prior drug convictions that doubled the minimum sentence or put someone in prison for life. We wrote about this before here. Under the other policy, they could not threaten to charge such priors just to force you to plead guilty. I guess that’s fair game now.

The new policy has sparked criticism across the spectrum. Lawmakers from both parties have railed against it. One former U.S. Attorney decried its “stunning lack of faith” in line prosecutors. A coalition of state and local prosecutors has published an open letter against it. And the National Association of Criminal Defense Lawyers had this reaction:

“This Attorney General has taken away the discretion of professional prosecutors to determine what sentence serves justice in any given case. Instead, prosecutors are now required in every case mindlessly to seek the maximum possible penalty…. This policy will lock up non-violent offenders with little or no criminal history, waste untold millions of dollars, devastate families and whole communities, and yet not make us any safer.”

What Are Your Intentions?

In most white-collar cases, the main driver at sentencing is the dollar amount of the victim’s loss, and in federal cases, the rule is that you’re responsible for either the actual loss or your intended loss, whichever is greater. We touched on the difference between actual and intended loss in this post from last spring.

But recently, an influential federal court of appeals had to decide a case in which the defendant stole his employers’ trade secrets but didn’t actually cause or intend any loss.

How so?

The defendant was a young financial analyst who, over a two-year period, worked for two securities firms. Both firms had created computer software to engage in high-frequency trading, where a computer trades at lightning-fast speed in response to market events. Each firm had invested time and money to develop the algorithms behind its software.

The defendant pleaded guilty to copying their computer programs for his own use, but he didn’t sell them, publish them, or take them to a competitor.

Instead, he used them to start making computerized trades himself, and he lost $40,000 in the process. There was no evidence he had any bigger plans for them than that. He got caught when the second firm grew suspicious of the activity on his work computer, which led to his being indicted for wire fraud, computer hacking, and theft of trade secrets.

At sentencing, everyone agreed that the two firms had suffered no actual loss, and there was no evidence the guy intended to cause them any loss at all.

The trial court, however, found that he intended to cause a loss of $12 million because that was the total labor cost that the firms incurred in developing their software.

That number made a big difference. Under the federal sentencing guidelines, it jacked up the guy’s suggested sentence from probation, which may have included some time in home detention or a halfway house, to a sentence of seven to nine years in prison. Based on that, the court sentenced him to three years in prison.

And yet, there was no evidence that the guy intended to cause the victims any loss, let alone a loss that equaled their internal cost of development. Although the trial court could consider such costs under the sentencing guidelines, it could not base its loss estimate on those costs alone without any proof of the defendant’s intent.

So the court of appeals sent the case back for resentencing.

U.S. Sentencing Commission Votes to Reduce Federal Drug-Trafficking Sentences

Unanimously, it was done. At a public meeting on April 10, the U.S. Sentencing Commission voted to amend the federal sentencing guidelines in a way that is expected to reduce the average sentence for most drug-trafficking cases from 62 months to 51 months. The vote was anticipated by a speech that was delivered by the chair of the Sentencing Commission on March 26 and covered here.

So what exactly will the proposed amendment do?

To understand that, here’s a crash course on the federal sentencing guidelines in general and the drug-trafficking guideline in particular.

The sentencing guidelines work like math. They apply geometry and arithmetic to arrive at an advisory (i.e. guideline) range for the appropriate sentence in a given case (e.g. 30-37 months). In geometry, do you remember that stuff about x- and y-axes? Well, the guidelines mainly concern themselves with that, too.

If you need a visual, take a look at this sentencing table, which shows all possible sentencing ranges under the current guidelines.

See that? The x-axis is your criminal history, which is based on the number of criminal history points you’ve accumulated in your lifetime. The total number of points will place you in one of six Criminal History Categories, and as you can see from the table, your Criminal History Category will affect your guideline range. If you have no criminal history, which means you’re in Criminal History Category I, you’re better off, and if you’re in Category VI, then even a relatively minor new conviction can put you in prison for a while.

The y-axis, on the other hand, is something called the Offense Level, and it’s based on the specific statute you’re accused of violating. That specific statute—say, bank robbery under 18 U.S.C. § 2113—corresponds to a specific guideline provision, which for bank robbery is § 2B3.1. If you look up that guideline, you’ll see that bank robbery carries a base offense level of 20. That’s a start, but then you add to that number based on the aggravating factors in § 2B3.1. How much money did you steal, for example? Did you use a gun? Did anyone get hurt? If so, you’re going to wind up with a bigger number than 20. Sometimes, the guidelines provide for mitigating factors, in which case you subtract rather than add. In the end, the final number you get is called your Total Offense Level.

It’s more complicated than that, of course, but once you’re done adding or subtracting, and once you’ve calculated a Total Offense Level and Criminal History Category, you go to the sentencing table, cross-reference your x- and y-axes, and voilà: that’s your guideline range.

How does all this relate to the Sentencing Commission’s proposed amendment? Well, the main guideline for drug-trafficking offenses is § 2D1.1, and the base offense level under that guideline is usually determined by the quantity of drugs involved. What the proposed amendment will do is lower the base offense level by two points across all drug types and quantities. So the same amount of cocaine, heroin, or methamphetamine that used to trigger a base offense level of 36 will now trigger a 34; the amount that used to result in a base offense level of 20 will now result in a base offense level of 18; and so on.

The Times May Be a-Changin’, and It’s a Good Thing

Last week, the chair of the United States Sentencing Commission delivered an important speech that brought conservatives, liberals, and others together under the banner of sentencing reform.

The speech was entitled, “A Generational Shift for Drug Sentences,” and it was delivered by the Hon. Patti Saris, who is a federal district judge for the District of Massachusetts. Judge Saris currently serves as the chief judge of her district, and she has served as a state or federal judge for the past 30 years.

With that background, it’s safe to say that she has sentenced a lot of defendants in general and a lot of drug defendants in particular. Plus, for the past four years, Judge Saris has chaired the Sentencing Commission, which is the federal agency that studies federal crime and sentencing issues, advises Congress and the executive branch about them, and develops the federal sentencing guidelines that drive most federal sentences.

Her speech did two things. First, it pressed the case for Congress to revise our mandatory-minimum drug penalties in three ways:

  1. By reducing mandatory-minimum drug sentences in general;
  2. By expanding the “safety-valve” provision that permits federal judges to sentence below the mandatory minimum in cases of non-violent, low-level drug offenders; and
  3. By making the Fair Sentencing Act of 2010 retroactive. (The Fair Sentencing Act, you might recall, was the law that reduced the disparity in treatment of crack and powder cocaine, among other things.)

As Judge Saris indicated in her speech, the Senate Judiciary Committee passed legislation last month that took up each of those recommendations with bipartisan support.

The second thing her speech discussed was an amendment to the sentencing guidelines that the Commission proposed in January of this year. The proposed amendment would reduce the drug guidelines by two levels, which would have the modest but humane effect of reducing the average federal drug sentence from 62 months (or 5+ years) to 51 months (or 4+ years).

The moral benefits and cost savings of these reforms are significant. Our federal prisons are roughly 38% over capacity, and drug offenders represent one-third of all federal sentences. Of those, twenty-three percent consist of low-level mules and couriers who are charged with mandatory-minimum penalties about half the time. Overall, the largest group of drug defendants subject to these severe mandatory-minimum sentences are street-level dealers, not the kingpins and organizers we imagine.

Here’s the text of the speech itself, and for those of you in the Washington, D.C. area on April 10, the Sentencing Commission is holding a public meeting to vote on the proposed amendment.


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