17 January 2018

The Federal Criminal Docket In The Fourth Quarter Of 2017


* Sentences for child pornography (mostly possession not creation of it) are far too high. The average child pornography sentence is 146 months (12 years, 2 months). 

This is more than sexual abuse. This is more than racketeering. This is more than being a felon with a firearm. Only murder at 224 months (18 years, 8 months) and kidnapping/hostage taking at 230 months (19 years, 2 months) have longer mean sentences. Yet, most of these cases involve mere possession of child pornography (although often large quantities of it) and often on a purely non-commercial basis.

A reasonable sentence for typical child pornography offenders who possess it, but don't create it, ought to be more like two to four years (24 to 48 months), or less in less aggravated cases. The child pornography laws in the U.S. are also over broad (including conduct like consensual sexting by teenagers with each other), but in practice, federal prosecutors almost never target that kind of conduct for criminal prosecution.

* The criminalization of drugs is still a bad and costly idea that ruins lives. Even the 30.9% of offenses that are drug crimes understates the total since many "miscellaneous offenses" are drug crimes too. About 5.74% of all federal sentences are for marijuana offenses, which is ridiculous.

* Far too many immigration offenses result in criminal prosecutions.

* There is still no good reason for bank robbery to be a federal crime, even though this makes up less than 1% of the federal criminal court caseload. Much of the rest of the "blue collar crime" offenses involve crimes committed in Indian Country and on federal land. 

* A disproportionate share of federal crimes are white collar crimes.

* Many crimes that should be listed as "Environmental/Wildlife" are listed as miscellaneous offenses.

* Corruption offenses like perjury, bribery and civil rights violations are rarely prosecuted.

* A few simple, sensible policy changes could greatly decrease inappropriate mass incarceration at the federal level. The solutions at the state level are far less straight forward, but most people who are incarcerated in the United States are incarcerated for state and local offenses, not federal ones.

The Facts

As measured by sentences imposed broken down by primary sentencing guideline offense:

Which Crimes and What Sentences?

PRIMARY OFFENSE TOTAL 66,412 100.0% (raw number, percentage of total, mean months)

Murder 72 0.1% 224
Manslaughter 59 0.1% 69
Kidnapping/Hostage Taking 62 0.1% 230
Sexual Abuse 602 0.9% 138
Assault 772 1.2% 29
Robbery 641 1.0% 74
Arson 40 0.1% 63

Drugs - Trafficking 18,981 28.6% 78
Drugs - Communication Facility 262 0.4% 28
Drugs - Simple Possession 1,267 1.9% 4
Drugs - Subtotal 30.9%

Child Pornography 1,773 2.7% 146

Firearms 8,024 12.1% 71

Burglary/B&E 32 0.0% 18
Auto Theft 64 0.1% 72
Larceny 796 1.2% 10

Fraud 5,978 9.0% 26
Embezzlement 394 0.6% 7
Forgery/Counterfeiting 370 0.6% 18
Bribery 154 0.2% 20
Tax 428 0.6% 13
Money Laundering 672 1.0% 33
Racketeering/Extortion 932 1.4% 98
Gambling/Lottery 46 0.1% 4
Environmental/Wildlife 104 0.2% 3
National Defense 89 0.1% 56
Antitrust 30 0.0% 13
Food & Drug 84 0.1% 6

Civil Rights 56 0.1% 36

Immigration 20,334 30.6%  12

Prison Offenses 521 0.8% 12
Administration of Justice Offenses 1,050 1.6% 19

Other Miscellaneous Offenses 1,723 2.6% 19

Which drugs?

Powder Cocaine 19.3%
Crack Cocaine 7.3%
Heroin 13.2%
Marijuana 18.6%
Methamphetamine 34.7%
Other 6.8%
Listed Chemicals 0.1%

The vast majority of federal drug prosecutions (more than 93%) involve just four classes of controlled substances.

Sixty percentage of drug offenses involve two kinds of stimulants (cocaine and methamphetamine) which have close substitutes that are prescription drugs (e.g. amphetamine salts). Indeed, cocaine was once an ingredient in Coca Cola and other over the counter drugs, albeit in much lower doses than are usually consumed illegally today.

More than 13% of federal drug crime cases involve opioid pain killers (I suspect that lots of the "other" cases which  make up 6.8% of the total above involve opioids other than heroin, which also have legitimate medical uses in some form, but are prone to causing addiction and abuse.)

There is simply no legitimate reason that 19% of federal drug prosecutions should involve basically harmless marijuana.

Less than 7% of federal drug prosecutions involve any of the myriad other controlled substances under the controlled substances act.

Sentencing Guideline Compliance

Above Guideline Range 2.9%
In Guideline Range 49.1%
Below Guideline Range 47.9%
-- Government Sponsored 27.8%
-- Non-Government Sponsored 20.1%

The fact that non-government sponsored deviations from the Sentencing Guidelines are about 7 times as likely to deviate downwards from the guidelines, rather than upwards from them, is an indication that the guidelines themselves are too harsh, rather than being in the "sweet spot" in the intuitive middle where judges are as likely to deviate upward from the guidelines as they are to deviate downward from the guidelines, in the absence of a prosecution approved adjustment.


While some categories are self-evidence, some call for further definition:

Prison Offenses includes contraband in prisons, riots in federal facilities, and escape.

Administration of Justice Offenses includes commission of offense while on release, failure to appear by offender, failure to appear by material witness, bribery of a witness, payment of witness,  contempt,  obstruction of justice, perjury or subornation of perjury, misprision of a felony, and accessory after the fact.

Environmental/Wildlife includes waste discharge, specially protected fish, wildlife, and plants (waste discharge is presented as a separate offense category in Tables 51 and 52).

National Defense includes evasion of export controls and exportation of arms, etc., without license.

Antitrust includes bid-rigging, price-fixing, and market allocation agreement.

Food & Drug includes false information or tampering with products, tampering to injure business, tampering with risk of death or injury, and violation of regulations involving food, drugs, etc.

Other Miscellaneous Offenses includes:

illegal use of regulatory number – drugs;
illegal transfer of drugs;
illegal regulatory number to get drugs;
drug paraphernalia;
forgery/fraud for drugs;
dangerous devices to protect drugs;
manufacture drugs against quota;
endangering life while manufacturing drugs;
operate carrier under drugs;
unlawful conduct relating to control/cigarettes;

endangerment from hazardous/toxic substances;
mishandling substances, records, etc.;
threat of tampering with public water system;
mishandling other pollutants, records, etc.;
transport of hazardous material in commerce;

hazardous devices on federal lands;
improper storage of explosives;
recordkeeping violation – explosives;
possession of other weapon – on aircraft, in federal facility;
failure to report theft of explosives;
feloniously mailing injurious articles;

interference with flight crew,
other offense – aboard aircraft;

criminal infringement of copyright/trademark;
criminal infringement of trademark;

conflict of interest;
unauthorized payment;

non-drug forfeiture;
false statement to Employee Act;
reporting offenses – labor related;

destruction of property;
destruction of mail;

aircraft piracy;
conspiracy to murder (no death, assault, or attempt);
conspiracy to commit murder;

and all other miscellaneous offenses not previously listed in any of the other categories.

Miscellaneous Facts

In the entire year in 2016 there were the following number of sentences in the entire U.S.A.:

8 slavery cases
82 criminal copyright/trademark cases
286 bribery/illegal gratuity/unauthorized compensation/unauthorized payment cases
128 obstruction of justice cases
40 perjury cases
40 failure to appear by defendant
1 failure to appear by a material witness
1 possession of a dangerous weapon while boarding an aircraft
273 child porn cases involved sexual acts involving a minor by the offender
About 80% of child porn trafficking cases did not involve an exchange of money or a thing of value.

1 comment:

andrew said...

More details on the child porn travesty. http://sentencing.typepad.com/sentencing_law_and_policy/2018/01/taking-a-critical-look-at-recent-report-on-federal-prosecution-of-commercial-sexual-exploitation-of-.html