Wednesday, November 25, 2009

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.


Anonymous said...

To clarify, does the rate of departures include "traditional departures" such as a one point reduction for the waiver of depositions?

Gritsforbreakfast said...

The numbers from the Southern District don't break it down with that level of specificity. The testimony (pdf) from the Western District Probation Chief had a bit more detail, but perhaps still not as specific as you're asking.

Jerri Lynn Ward said...

As you might know, civil lawyers are forced to represent federal criminal defendants here in Austin. I thought that I got a good sentence for a defendant recently. I GUESS NOT, given this post.

I am so completely disgusted by the federal criminal system. In this last case, I had to go listen to the prosecutors talk about how people who just sold dope (yet never committed physical violence) were too dangerous to the community to get bond. I walked out with a criminal attorney and asked him how he could put up with such a FARCE, where nonviolent people could be adjudged a danger just because they sell some dope.

I'm far-right, Christian, and trying to be a Republican, but I just don't get all these horrible federal sentences against people who sell dope to willing consumers.

Anonymous said...

Hi Jerri Lynn,

You are asking the right questions and it is heartening to genuine reflection on your part. Many of us have gone through the same transition where our personal beliefs did not square with the evidence in front of us and lead us to question our original views and the assumptions on which they were based.

The more you explore justice questions and issues the less sense traditional perspectives make and alternative perspectives that once seemed far fetched become increasingly salient.

Many of us who have traveled this road before you have come to realize that if we don't speak out on these issues and advocate change (based on the weight of the research evidence and strongest theory) we are part of the problem and our silence perpetuates nonsensical, counterproductive and expensive practices that as you note in your comment are more injustice than justice.

It takes courage to question what some many accept without a second thought.

Anonymous said...

Just "follow the money". Easy as that....

Scott Stevens said...

Regarding Jerri Lynn Ward's comments: I no longer take CJA (federal court appointed) cases in the Waco Division of the Western District, where I practice, because I think the federal system in inherently unfair. The sentencing guidelines system causes the focus to shift almost entirely to lessening the sentence--to the point of nearly creating a presumption of guilt.

I have long thought that forcing all lawyers to handle those cases would result in change, because the high-powered, high-paid civil lawyers that would necessarily be forced to take cases would not tolerate the ridiculous discovery strictures of criminal cases (though fed is better than state). They would then force a change because some of them would be powerful enough politically to actually effect a change.

Criminal defense lawyers do not have the political stroke to force the changes because they are looked down upon as being dishonest and a worthless, unnecessary part of the system by the general public. Rich civil lawyers (yes, I know not all civil lawyers are in that category) would not have that same stigma when they say the government's policies were unreasonable and needed to be changed.

Would a senior partner in Fulbright, Jaworski be shat upon the way many criminal defense attorneys are? I think not.

Jerri, I sympathize with your for having to put up with it and echo your question about why criminal lawyers have for so long.