Behind the Statistics: What Kind of Offenders Benefit from Guideline Departures in the EDNY and SDNY?

EDNY and SDNY judges are flexing their post-Booker discretion to impose below-Guidelines sentences at a far greater rate than their national counterparts, a September 4, 2007 report in Newsday concluded. In fact, the report says that judges in the EDNY and SDNY dropped below the Guidelines 17.9% of the time in the first six months of Fiscal Year 2007 (which runs from October 1, 2006 to March 31, 2007) as compared with 6.9% nationwide. The report does not analyze the statistics, beyond noting that most of the beneficiaries of this largesse were convicted of drug trafficking, immigration crimes and embezzlement. It then goes on to highlight some individual cases involving mafia members – the clear implication being, of course, that the departures benefit the least deserving.

A closer analysis of the statistics relied upon by the Newsday report reveal a different picture however. The vast majority of beneficiaries are classified as Criminal History Category 1 offenders (those with no or minimal criminal history) and convicted of non-violent offenses. In fact, those convicted of violent offenses received zero departures, in stark contrast to the national statistics, which show a 15% below-Guidelines departure rate in cases of violence. In addition, EDNY and SDNY judges incarcerate offenders at close to national rates of incarceration, with the exception that they tend to incarcerate violent offenders more than do their national counterparts.

Using statistics readily available at the website for the Federal Justice Statistics Resource Center, and focusing on offenders sentenced in 2006, the following can be observed:

• Departures for Criminal History Category 1 Offenders: 64% of the EDNY and SDNY non-government sponsored below Guidelines sentences (whether by means of a traditional downward departure, or a post-Booker “non-Guidelines” variance) consisted of offenders in Criminal History Category (CHC) I. The high proportion of CHC I departures reflects the fact that offenders in CHC I represent 63% of the total offenders sentenced in the EDNY and SDNY in 2006. (Nationally, 51% of the below-Guidelines departures involve CHC I offenders; 45% of offenders sentenced nationally are in CHC I.)
• Departures for Violent Offenders: None of the non-government sponsored below Guidelines sentences in the EDNY and SDNY involved offenders convicted of violent crimes. (Nationally, 4% of the departures involved offenders charged with violent offenses.)
• Rate of Departures in all cases: 27% of all sentences in the EDNY and SDNY involved a non-government sponsored below Guidelines sentence. (Nationally, the rate is 12%.)
• Rate of Departures Depending on Criminal History Category: The rate of non-government sponsored below Guidelines sentences in the EDNY and SDNY is roughly equivalent across criminal history categories: CHC I – 28%; CHC II – 25%; CHC III – 28%; CHC IV – 27%; CHC V – 26%; CHC VI – 28%. (Nationally, departure rates across CHCs are also basically equivalent.)
• Rate of Departures Depending on Type of Offense: The rate of non-government sponsored below-Guidelines sentences in the EDNY and SDNY varies, however, according to the nature of the offense charged, with higher rates for drug and immigration crimes and lower rates for violence, weapons and property crimes. (The fact that property offenses produce less departures may reflect the fact the initial Guidelines in those cases often provide for non-custodial sentences at the outset, thus obviating the need for any departure.) Specific rates of departure by type of offense are as follows: Drug Crimes – 31%; Immigration – 33%; Property – 21%; Public Order – 27%; Weapons – 23%; Violence – 0%. (National rates surprisingly show an advantage for those charged with violent offenses, and less leniency towards those charged with drug and immigration crimes. National departure rates are as follows: Drug Crimes – 11%; Immigration – 8%; Property – 14%; Public Order – 16%; Weapons – 13%; Violence – 15%.)

Thus, the judges in the EDNY and the SDNY exercise their post-Booker discretion evenly across the board depending on criminal history category, which has the effect of predominantly benefiting those in CHC I, since CHC I contains the majority of offenders. In addition, unlike their national counterparts who strangely depart downwards at an above average rate in cases of violence, the EDNY and SDNY judges benefit those charged with non-violent offenses in exercising their departure powers.

If one looks at incarceration rates, however, it would appear that the EDNY and SDNY departures are doing little to halt the march of incarceration nation:

• Incarceration Rate for all Cases: The rate of incarceration in all cases in the EDNY and SDNY is 84%. Nationally, it is 88%.
• Incarceration Rate Depending on Criminal History Category: There are distinct differences in incarceration rates in the EDNY and SDNY based on the offender’s criminal history category, with those in the higher categories receiving prison sentences at a far greater rate than those in the lowest one. Specifically, the rates of incarceration based on criminal history category are as follows: CHC I – 77%; CHC II – 91%; CHC III – 94%; CHC IV – 96%; CHC V – 98%; CHC VI – 98%. (National rates are marginally higher, but follow a consistent pattern.)
• Incarceration Rate Depending on Type of Offense: Similarly, there are distinct differences in incarceration rates in the EDNY and SDNY based on the offense type involved, with a higher likelihood of incarceration for violence, drugs, weapons and immigration offenses. Specifically, rates of incarceration based on type of offense are as follows: Violence – 98%; Property – 62%; Drugs – 95%; Public Order – 74%; Weapons – 97%; Immigration – 97%. (Again, national rates follow a similar pattern, except that nationally, the incarceration rate in cases of violence is oddly 5% less at 93%).

In sum, while the EDNY and SDNY judges are departing at a rate of 27%, as compared to national departure rates of 12%, they are incarcerating offenders at close to national rates (84% as opposed to 88%). This suggests that EDNY and SDNY judges are exercising their departure power at the edges – to mitigate the severity of the sentences called for under the Guidelines – rather than to reverse the national trend of incarcerating large numbers of non-violent offenders with minimal criminal history. In other words, they are tinkering with the machinery but are certainly not dismantling it.

Perhaps most interesting, and a fact these judges should use to counter claims of excessive leniency, they are treating violent offenders more harshly than their national counterparts.

[Note: My statistical conclusions differ somewhat from the Newsday article, because the reporter was focusing on Booker departures, rather than the whole gamut of non-government sponsored downward departures and variances.]