Peeking in on the feds: Texas' Western District prosecutors less generous than Southern

I've been meaning to revisit some of the testimony from last week's US Sentencing Commission hearing here in Austin, and thought I'd point out some interesting data from federal probation chiefs here in Texas and some new (to me) data on federal prison overcrowding.

According to written testimony (pdf) from Texas Southern District Probation Chief Becky Burks submitted last week to the US Sentencing Commission, immigration cases make up the overwhelming portion of the district's court docket. She notes that "in FY 2008, the Probation Office completed 6574 presentence investigations and supervised 5470 offenders in the community." Of those, "relative to the primary offense of conviction, Immigration comprised 72.5% of the cases, with drugs coming in second at 18%, and firearms, 2.9%, and fraud, 2.2% virtually tied at a distant third."

Burks testimony also describes the burden put on federal probation departments for immigration cases, pointing out that "Supreme Court and 5th Circuit case law make these presentence investigations some of the most laborious to produce and the sentencings among the most complex."

For reasons that aren't clear to me, there's a wide variation between the two districts regarding how often prosecutors support downward variances from the federal sentencing guidelines. Wrote Burks:

As it pertains to sentencing practices, 57.7% of Texas Southern’s 2008 cases were sentenced within the guideline range. While this was not drastically different from the national rate of 59.4%, it was significantly below the 5th Circuit rate of 70.4%. This perhaps resulted from higher Government sponsored below range sentences, which accounted for 34.8% of the total below range sentences imposed. Non-government sponsored below range sentences totaled 6.5%.

By contrast, according to testimony to the commission (pdf) by Probation Chief Joe Sanchez, in Texas' Western District, 78.7% of cases were sentenced within guideline range, meaning defendants received fewer sentence reductions. The Western District also saw far fewer government-sponsored downward departures, mostly for defendants who provided "substantial assistance" to the prosecution (i.e., for snitching).

What accounts for the 21-point difference between the rates of cases in Texas' Southern and Western districts sentenced within guideline range? I don't know the answer, but it's a striking number, as is the difference between the 5th Circuit's rate of downward departures overall and the national average. Texans, and especially those in the Western District, simply aren't receiving downward departures as often as defendants elsewhere, for reasons at which I could hardly guess. (Perhaps some knowledgeable commenters can shed some light on the question.)

Also noteworthy was testimony (pdf) by federal Bureau of Prisons Director Harley Lappin related to seldom-discussed overcrowding at federal facilities:

Over the past 20 years, the federal inmate population has increased more than 200%, from just under 65,000 to more than 209,000. The number of federal prisons has increased from 64 to 115, and our staff number more than 36,000 today. Over the past few years, we have not been able to build enough new facilities to keep up with the increase in the federal inmate population; tight budgets have also meant that we have not been able to increase our staffing to the level necessary to keep pace with the population growth. This has led to a dramatic increase in the inmate-to-staff ratio in our institutions, and significant crowding.

Our facilities are as crowded today as they have ever been (37% above capacity) and our inmate-to-staff ratio has increased more than 40% over the past decade – today our ratio is nearly 50% higher than that reported by the five largest State Departments of Corrections.

We are forced to double bunk nearly all of our high security inmates, many of whom are aggressive and violent and have various anti-social tendencies, and we are triple bunking nearly half of the remaining inmate population. None of our facilities were designed for triple bunking. With the inmate population expected to continue to increase by 7,000 inmates each year, we do not anticipate a reduction in the level of crowding in the near future.

According to Lappin, "The high levels of crowding and reduced staffing levels have substantially impacted the Bureau’s capacity to provide recidivism-reducing programs." Lappin lamented that what he considers the feds' "most important reentry program," Federal Prison Industries, is "dwindling rather than expanding." It's interesting to hear prison industries, which have come under fire here in Texas, described as the "most important reentry program" by the feds. (That's not how it's viewed by Texas state legislators.!)

Besides FPI, federal inmates who participate in education programs, said Lappin, "are 16% less likely to recidivate as compared to their non-participating peers." He also emphasized that "maintaining family and community ties is very important to inmate reentry."

See other testimony to the US Sentencing Commission via links to written testimony under the names of participants on last week's agenda.