“Unwarranted Disparity: Effectively Using Statistics in Federal Sentencing”

The title of this post is the title of this recent practitioner-oriented piece authored by Alan Ellis and Mark Allenbaugh. Here is its introduction:

Now in their 30th year, the U.S. Sentencing Guidelines (Guidelines) have been used to sentence well over 1.5 million defendants nationwide since Nov. 1, 1987, when they first went into effect. (See U.S. Sentencing Comm’n, 1996-2015 Sourcebooks on Federal Sentencing Statistics, Tbl. 10; U.S. Sentencing Comm’n, Quarterly Data Report (4th Quarter Release), Tbl. 1 (Sept. 30, 2016).  From these sources, there were approximately 1.4 million individuals sentenced under the Guidelines.)

Eliminating unwarranted sentencing disparity was the primary goal of the Sentencing Reform Act. (See U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing, 79 (2004)). The act created the U.S. Sentencing Commission (Commission), tasking it with the creation of the Guidelines, and the authority to amend and promulgate new Guidelines from time to time. (See 28 U.S.C. § 994).

Since their inception, the Guidelines have been amended hundreds of times.  This process largely has been informed by the data the Commission collects, publishes and analyzes regarding the application of the Guidelines, including sentences imposed, and departures or variances.  Although in many instances the Commission has been directed by Congress to make certain changes.  In short, the Guidelines have evolved primarily, although not exclusively, as a result of the Commission’s ‘‘empirical approach’’ to sentencing. (See USSG, Ch. 1, Pt. A.)

The purpose of this article is to provide the reader with an overview of what data are available, and to provide suggestions as to how the data may most effectively be used by practitioners in mitigation of punishment.