Who will be getting “sentencing windfalls”?

In late July, I lamented here the failure of the US Sentencing Commission to take a leading role in the post-Blakely policy conversation about the future of federal sentencing. And, as detailed here, I was discouraged to see from the Acting Solicitor General’s reply brief that the USSC is providing critical information about how many federal cases involve Blakely factors to DOJ and the SG without making that information publically available.

Rather than continue to bemoan these realities, I now want to focus my attention on the single data issue that seems most important to me on the issue of severability — namely, who would be getting “sentencing windfalls” if the guidelines are deemed severable? Of course, I have explained here and here that I am more concerned about lowered sentences if the guidelines are made wholly advisory than if they are severable. Part of what drives that instinct is my sense that the vast majority of federal offenses involve drug crimes or immigration offenses — offenses which (1) most federal judges believe are sentenced much too harshly under the existing guidelines and (2) involve offenders with many mitigating personal circumstances that the existing guidelines now declare irrelevant.

Let’s look briefly at some of the numbers. According to publically available USSC data here, roughly 60% of the federal criminal case load involves drug offenses or immigration offenses. And this chart shows that, in roughly 70% of all drug cases and about half of all immigration cases, the defendant was sentenced at the absolute bottom of the applicable guideline range. Though this data could be interpreted in many ways, it does not seem unreasonable to speculate that in many of these cases sentencing judges freed from guideline constraints would be eager to go below (perhaps well below) the sentences now mandated by the guidelines. Indeed, the Ninth Circuit case discussed here provides a good example of how much more lenient a sentencing judge wanted to be in an immigration case if the guidelines had not served as a legal limit on leniency.

Of course, despite the fact that the federal criminal justice system is mostly about drug offenders and immigration offenses, my sense is that the SG and DOJ have their focus on a different (much smaller) class of federal offenders. Specifically, in comments to this post, “a government lawyer” says “there are defendants who swindled grandma & her friends out of $5 million who are looking at 6 month maximums.” As this comment reveals, it seems that the government’s true concern about “sentencing windfalls” comes in the context of fraud cases.

But, as Professor Frank Bowman highlighted here in USSC testimony last year, there is “a predominance of low-level, low-loss cases in the federal system.” Most federal defendants are sentenced in fraud cases for losses caused of less than $40,000. I am sure there are a few cases of defendants “who swindled grandma & her friends out of $5 million,” but is there really likely to be more than a handful of these cases in the pipeline? And is it worthwhile to jettison the entire guideline structure, and to allow thousands of drug and immigration offenders a chance at much lower sentences, simply to “save” that handful of cases (especially when, as I suggested here, upward departures might be available to avoid true sentencing windfalls in these cases)?

Of course, all my low-rent data analysis might be washed up here. But that is why I want to see, and have publically available, the more sophisticated work that the experts at the US Sentencing Commission must be doing.