Federal Drug Offenses:

Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001

GAO-04-105: Published: Oct 24, 2003. Publicly Released: Oct 31, 2003.

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Created in 1984, the United States Sentencing Commission (USSC) was charged with developing the federal sentencing guidelines to limit disparities in sentencing among offenders with similar criminal backgrounds found guilty of similar crimes. Judges determine a specific sentence based on an applicable sentencing guideline range, such as 57 to 71 months, provided in the guidelines. Judges may impose sentences that fall anywhere within the range, above it (upward departures), or below it (downward departures). For some offenses, Congress established mandatory minimum sentences. Judges may also sentence below the minimum in certain circumstances. We examined the differences in drug offense departures from sentencing guidelines and mandatory minimum sentences among federal courts and the documents the USSC used to record and analyze sentences.

Generally, downward departures are defined as (1) substantial assistance departures, made at the prosecutor's request because the offender provided substantial assistance to the government; and (2) other downward departures made for other reasons, such as a plea agreement, a judge's consideration of mitigating factors, or early disposition, i.e., "fast track" programs initiated by prosecutors for low-level drug trafficking offenses. Of federal sentences for drug-related offenses in fiscal years 1999-2001, the majority (56 percent) was within applicable guideline ranges. Downward sentencing departures were more frequently due to prosecutors' substantial assistance motions (28 percent) than for any other reasons (16 percent). For federal drug sentences that carried a mandatory minimum term of imprisonment, more than half of the drug sentences imposed fell below a mandatory minimum. Of these, half fell below a minimum due to prosecutors' substantial assistance motions and half due to other reasons. After adjusting for differences in offense and offender characteristics among judicial circuits and districts, our analysis showed variations among certain circuits and districts in the likelihood an offender received a substantial assistance departure, other downward departure, or a sentence falling below a mandatory minimum. However, these variations did not necessarily indicate unwarranted sentencing departures or misapplication of the guidelines because data were not available to fully compare the offenders and offenses for which they were convicted. For drug sentences nationally, USSC receives 96 percent or more of the three key documents, including the statement of reasons (SOR), used to record sentence length and departures. For a small percentage of drug cases in USSC's database, information is missing, incomplete, or too difficult for USSC to interpret, principally affecting sentencing analyses in districts where the missing or incomplete data are most prevalent.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: The Judicial Conference issued a revised SOR (the AO 245B/C (Rev. 06/05)), and the Commission voted to approve the revised SOR at a public meeting on May 15, 2006. The Commission and the CLC issued a joint memorandum to all federal courts and probation offices informing them of the revised SOR and the mandate to use the revised SOR. The Commission assisted the AO in the development of an explanatory brochure that accompanied the revised SOR when it was issued. Also, the Commission participated with the CLC and the AO in a training session on the revised SOR that was televised on FJTN, the judiciary's television network that is available to all court personnel. As a result of this, Federal sentencing courts have shown a high rate of compliance with this new statutory requirement as courts submitted to the Commission the revised SOR in almost 90 percent of individual cases sentenced in fiscal year 2007. It is the Commission's belief that this high rate of usage of the revised SOR has been an important step toward achieving uniformity and accuracy in sentencing documentation, which in turn has enhanced standardized collection of data by the Commission. (Data collection) As a result, the incidence of unclear or difficult to interpret sentencing documentation in drug and other cases has significantly decreased as a result of a number of factors: (1) the issuance of the mandatory revised SOR, (2) the high rate of compliance with use of the revised SOR, (3) expanded training on sentencing documentation by the Commission and others, (4) enhanced quality control mechanisms instituted by the Commission in recent years for drug cases and for cases sentenced below the applicable guideline range, and (5) the Commission's development of an electronic system for the courts' submission of sentencing documentation, which is now used by 93 of the 94 judicial districts. (Training) The Commission developed and continues to use a training program on sentencing documentation, particularly the revised SOR, for probation officers, law clerks, and judges. These training efforts have been well received by the sentencing courts, and the Commission is in the process of expanding them to include other court personnel, such as courtroom deputies. In addition, at chief judge orientation programs conducted by the AO and at other programs for chief judges conducted by the Federal Judiciary Center, the Commission regularly instructs the chief judges of the district courts regarding their statutory responsibility under 28 U.S.C. 994(w) to ensure that, within 30 days following entry of judgment, the sentencing court submits to the Commission a written report of the sentence which shall include the judgment and commitment order, the revised SOR, any plea agreement, the indictment or other charging document, and the pre-sentence report. (Collaboration) As noted above, the implementation of this recommendation culminated in the June 2005 revision of the standard SOR by the Commission and the Committee on Criminal Law of the Judicial Conference of the United States (the "CLC"). Furthermore, the Commission, the CLC, and the AO continue to collaborate regularly regarding whether further revisions to the SOR might be appropriate.

    Recommendation: As USSC and the AOUSC work together to collect and record information on federal sentences and provide additional education and information to judges, the USSC and AOUSC should continue to collaborate to revise the standard SOR to better meet the data collection needs of USSC.

    Agency Affected: United States Sentencing Commission

  2. Status: Closed - Implemented

    Comments: The Judicial Conference issued a revised SOR (the AO 245B/C (Rev. 06/05)), and the Commission voted to approve the revised SOR at a public meeting on May 15, 2006. The Commission and the CLC issued a joint memorandum to all federal courts and probation offices informing them of the revised SOR and the mandate to use the revised SOR. The Commission assisted the AO in the development of an explanatory brochure that accompanied the revised SOR when it was issued. Also, the Commission participated with the CLC and the AO in a training session on the revised SOR that was televised on FJTN, the judiciary's television network that is available to all court personnel. As a result of this, Federal sentencing courts have shown a high rate of compliance with this new statutory requirement as courts submitted to the Commission the revised SOR in almost 90 percent of individual cases sentenced in fiscal year 2007. It is the Commission's belief that this high rate of usage of the revised SOR has been an important step toward achieving uniformity and accuracy in sentencing documentation, which in turn has enhanced standardized collection of data by the Commission. (Data collection) As a result, the incidence of unclear or difficult to interpret sentencing documentation in drug and other cases has significantly decreased as a result of a number of factors: (1) the issuance of the mandatory revised SOR, (2) the high rate of compliance with use of the revised SOR, (3) expanded training on sentencing documentation by the Commission and others, (4) enhanced quality control mechanisms instituted by the Commission in recent years for drug cases and for cases sentenced below the applicable guideline range, and (5) the Commission's development of an electronic system for the courts' submission of sentencing documentation, which is now used by 93 of the 94 judicial districts. (Training) The Commission developed and continues to use a training program on sentencing documentation, particularly the revised SOR, for probation officers, law clerks, and judges. These training efforts have been well received by the sentencing courts, and the Commission is in the process of expanding them to include other court personnel, such as courtroom deputies. In addition, at chief judge orientation programs conducted by the AO and at other programs for chief judges conducted by the Federal Judiciary Center, the Commission regularly instructs the chief judges of the district courts regarding their statutory responsibility under 28 U.S.C. 994(w) to ensure that, within 30 days following entry of judgment, the sentencing court submits to the Commission a written report of the sentence which shall include the judgment and commitment order, the revised SOR, any plea agreement, the indictment or other charging document, and the pre-sentence report. (Collaboration) As noted above, the implementation of this recommendation culminated in the June 2005 revision of the standard SOR by the Commission and the Committee on Criminal Law of the Judicial Conference of the United States (the "CLC"). Furthermore, the Commission, the CLC, and the AO continue to collaborate regularly regarding whether further revisions to the SOR might be appropriate.

    Recommendation: As USSC and the AOUSC work together to collect and record information on federal sentences and provide additional education and information to judges, the USSC and AOUSC should continue to collaborate to revise the standard SOR to better meet the data collection needs of USSC.

    Agency Affected: United States Sentencing Commission

  3. Status: Closed - Implemented

    Comments: The Judicial Conference issued a revised SOR (the AO 245B/C (Rev. 06/05)), and the Commission voted to approve the revised SOR at a public meeting on May 15, 2006. The Commission and the CLC issued a joint memorandum to all federal courts and probation offices informing them of the revised SOR and the mandate to use the revised SOR. The Commission assisted the AO in the development of an explanatory brochure that accompanied the revised SOR when it was issued. Also, the Commission participated with the CLC and the AO in a training session on the revised SOR that was televised on FJTN, the judiciary's television network that is available to all court personnel. As a result of this, Federal sentencing courts have shown a high rate of compliance with this new statutory requirement as courts submitted to the Commission the revised SOR in almost 90 percent of individual cases sentenced in fiscal year 2007. It is the Commission's belief that this high rate of usage of the revised SOR has been an important step toward achieving uniformity and accuracy in sentencing documentation, which in turn has enhanced standardized collection of data by the Commission. (Data collection) As a result, the incidence of unclear or difficult to interpret sentencing documentation in drug and other cases has significantly decreased as a result of a number of factors: (1) the issuance of the mandatory revised SOR, (2) the high rate of compliance with use of the revised SOR, (3) expanded training on sentencing documentation by the Commission and others, (4) enhanced quality control mechanisms instituted by the Commission in recent years for drug cases and for cases sentenced below the applicable guideline range, and (5) the Commission's development of an electronic system for the courts' submission of sentencing documentation, which is now used by 93 of the 94 judicial districts. (Training) The Commission developed and continues to use a training program on sentencing documentation, particularly the revised SOR, for probation officers, law clerks, and judges. These training efforts have been well received by the sentencing courts, and the Commission is in the process of expanding them to include other court personnel, such as courtroom deputies. In addition, at chief judge orientation programs conducted by the AO and at other programs for chief judges conducted by the Federal Judiciary Center, the Commission regularly instructs the chief judges of the district courts regarding their statutory responsibility under 28 U.S.C. 994(w) to ensure that, within 30 days following entry of judgment, the sentencing court submits to the Commission a written report of the sentence which shall include the judgment and commitment order, the revised SOR, any plea agreement, the indictment or other charging document, and the pre-sentence report. (Collaboration) As noted above, the implementation of this recommendation culminated in the June 2005 revision of the standard SOR by the Commission and the Committee on Criminal Law of the Judicial Conference of the United States (the "CLC"). Furthermore, the Commission, the CLC, and the AO continue to collaborate regularly regarding whether further revisions to the SOR might be appropriate.

    Recommendation: As USSC and the AOUSC work together to collect and record information on federal sentences and provide additional education and information to judges, the USSC and AOUSC should 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 .

    Agency Affected: Administrative Office of the United States Courts

  4. Status: Closed - Implemented

    Comments: The Judicial Conference issued a revised SOR (the AO 245B/C (Rev. 06/05)), and the Commission voted to approve the revised SOR at a public meeting on May 15, 2006. The Commission and the CLC issued a joint memorandum to all federal courts and probation offices informing them of the revised SOR and the mandate to use the revised SOR. The Commission assisted the AO in the development of an explanatory brochure that accompanied the revised SOR when it was issued. Also, the Commission participated with the CLC and the AO in a training session on the revised SOR that was televised on FJTN, the judiciary's television network that is available to all court personnel. As a result of this, Federal sentencing courts have shown a high rate of compliance with this new statutory requirement as courts submitted to the Commission the revised SOR in almost 90 percent of individual cases sentenced in fiscal year 2007. It is the Commission's belief that this high rate of usage of the revised SOR has been an important step toward achieving uniformity and accuracy in sentencing documentation, which in turn has enhanced standardized collection of data by the Commission. (Data collection) As a result, the incidence of unclear or difficult to interpret sentencing documentation in drug and other cases has significantly decreased as a result of a number of factors: (1) the issuance of the mandatory revised SOR, (2) the high rate of compliance with use of the revised SOR, (3) expanded training on sentencing documentation by the Commission and others, (4) enhanced quality control mechanisms instituted by the Commission in recent years for drug cases and for cases sentenced below the applicable guideline range, and (5) the Commission's development of an electronic system for the courts' submission of sentencing documentation, which is now used by 93 of the 94 judicial districts. (Training) The Commission developed and continues to use a training program on sentencing documentation, particularly the revised SOR, for probation officers, law clerks, and judges. These training efforts have been well received by the sentencing courts, and the Commission is in the process of expanding them to include other court personnel, such as courtroom deputies. In addition, at chief judge orientation programs conducted by the AO and at other programs for chief judges conducted by the Federal Judiciary Center, the Commission regularly instructs the chief judges of the district courts regarding their statutory responsibility under 28 U.S.C. 994(w) to ensure that, within 30 days following entry of judgment, the sentencing court submits to the Commission a written report of the sentence which shall include the judgment and commitment order, the revised SOR, any plea agreement, the indictment or other charging document, and the pre-sentence report. (Collaboration) As noted above, the implementation of this recommendation culminated in the June 2005 revision of the standard SOR by the Commission and the Committee on Criminal Law of the Judicial Conference of the United States (the "CLC"). Furthermore, the Commission, the CLC, and the AO continue to collaborate regularly regarding whether further revisions to the SOR might be appropriate.

    Recommendation: As USSC and the AOUSC work together to collect and record information on federal sentences and provide additional education and information to judges, the USSC and AOUSC should 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 .

    Agency Affected: Administrative Office of the United States Courts

  5. Status: Closed - Implemented

    Comments: The Judicial Conference issued a revised SOR (the AO 245B/C (Rev. 06/05)), and the Commission voted to approve the revised SOR at a public meeting on May 15, 2006. The Commission and the CLC issued a joint memorandum to all federal courts and probation offices informing them of the revised SOR and the mandate to use the revised SOR. The Commission assisted the AO in the development of an explanatory brochure that accompanied the revised SOR when it was issued. Also, the Commission participated with the CLC and the AO in a training session on the revised SOR that was televised on FJTN, the judiciary's television network that is available to all court personnel. As a result of this, Federal sentencing courts have shown a high rate of compliance with this new statutory requirement as courts submitted to the Commission the revised SOR in almost 90 percent of individual cases sentenced in fiscal year 2007. It is the Commission's belief that this high rate of usage of the revised SOR has been an important step toward achieving uniformity and accuracy in sentencing documentation, which in turn has enhanced standardized collection of data by the Commission. (Data collection) As a result, the incidence of unclear or difficult to interpret sentencing documentation in drug and other cases has significantly decreased as a result of a number of factors: (1) the issuance of the mandatory revised SOR, (2) the high rate of compliance with use of the revised SOR, (3) expanded training on sentencing documentation by the Commission and others, (4) enhanced quality control mechanisms instituted by the Commission in recent years for drug cases and for cases sentenced below the applicable guideline range, and (5) the Commission's development of an electronic system for the courts' submission of sentencing documentation, which is now used by 93 of the 94 judicial districts. (Training) The Commission developed and continues to use a training program on sentencing documentation, particularly the revised SOR, for probation officers, law clerks, and judges. These training efforts have been well received by the sentencing courts, and the Commission is in the process of expanding them to include other court personnel, such as courtroom deputies. In addition, at chief judge orientation programs conducted by the AO and at other programs for chief judges conducted by the Federal Judiciary Center, the Commission regularly instructs the chief judges of the district courts regarding their statutory responsibility under 28 U.S.C. 994(w) to ensure that, within 30 days following entry of judgment, the sentencing court submits to the Commission a written report of the sentence which shall include the judgment and commitment order, the revised SOR, any plea agreement, the indictment or other charging document, and the pre-sentence report. (Collaboration) As noted above, the implementation of this recommendation culminated in the June 2005 revision of the standard SOR by the Commission and the Committee on Criminal Law of the Judicial Conference of the United States (the "CLC"). Furthermore, the Commission, the CLC, and the AO continue to collaborate regularly regarding whether further revisions to the SOR might be appropriate.

    Recommendation: The USSC, in addition to notifying courts of missing sentencing documents, should 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 Affected: Administrative Office of the United States Courts

 

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