We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SENTENCING COMMISSION PLATFORM GAINS LEGITIMACY
Three years ago this month, the U.S. Sentencing Commission debuted the Judiciary Sentencing INformation platform, known as JSIN, intended for use by sentencing judges to provide access to sentencing data for similarly-situated defendants. Using JSIN – available to anyone on the USSC website – a judge can input the Sentencing Guideline applicable to the statute of conviction (such as USSG § 2B1.1. for an 18 USC § 1343 wire fraud). Then, by clicking on the applicable sentencing range, that corresponds to the defendant’s Total Offense Level and Criminal History Category, the judge will generate a report on the mean and median sentences imposed nationwide for people in that Guideline range over the past five years.
Eighteen months ago, the Federal Judicial Center began a two-year pilot study of the impact of including JSIN data in defendants’ presentence reports in about one-third of all federal districts. In districts assigned to the pilot group, probation officers append a report from the JSIN tool to the end of each PSR (a report that is a compilation of information about a defendant developed by a probation officer prior to the sentencing hearing, including both details on such the defendant’s offense, criminal history, family history, education, employment record, military service, finances, and physical and mental health, and calculations on the recommended Guidelines range).
In the remaining districts, probation officers will refrain from including JSIN data in PSRs during the two-year study period, although judges and litigants may still use and consider the JSIN tool as they wish.
JSIN often reports that the average nationwide sentence for what a defendant was convicted of is considerably under the Guidelines advisory sentencing range and for people sentenced years ago is now much lower now than what was imposed at the time. For a sentencing memo I worked on a few weeks ago, JSIN reported that the national average sentence for a Criminal History III fraud defendant with a Total Offense Level of 14 (Guidelines range of 21-27 months) was 14-16 months, a 33% discount from the bottom of what the Guidelines recommended for a sentencing range.
Thus, JSIN is often great evidence of disparity between an older sentence and current sentencing practice – that is, if JSIN is reliable. A judge can easily conclude that a sentence around JSIN’s mean or median sentence is the sort of “just punishment” called for by 18 USC § 3553(a). But human nature being what it is, the defendants tend to reject JSIN’s results if those don’t support a lower sentence just as prosecutors reject JSIN’s reliability if its numbers don’t support a higher one.
Last week, the 9th Circuit slapped down a defendant who argued that his judge violated his due process rights by finding that JSIN data was sufficiently reliable to consider at sentencing as supporting a higher sentence. The Circuit held that “JSIN data came from a reliable source and was designed specifically for judges to use during sentencing to fulfill their obligations under 18 USC § 3553(a)(6) to consider the need to avoid unwarranted sentence disparities. The JSIN data was also corroborated by other unchallenged evidence.”
Brewster makes JSIN something of a two-edged sword. Today, it swipes at a defendant, but tomorrow it could just as easily eviscerate a government argument for a higher sentence. For those seeking more empirical sentencing data – as courts and thoughtful lawyers on both sides should – the decision is excellent support for an argument that sentencing judges should take JSIN seriously.
United States v. Brewster, Case No. 23-329, 2024 U.S.App. LEXIS 23240 (9th Cir. September 12, 2024)
U.S. Sentencing Commission, Sentencing Resources Guide
Administrative Office of U.S. Courts, Judiciary Studies Use of Online Tool in Presentence Reports (January 25, 2023)
– Thomas L. Root