Kopf: The Question of Sentencing Disparity, Part 1

The United States District Court for the District of Nebraska is the only court, or at least that’s what I have been told, that regularly publishes each judge’s individual sentencing statistics. We have been doing so since 2007.

These statistics are prepared by the Sentencing Commission at the request of each judge of our court. If for no other reason, I am proud of our judges for being utterly transparent on this subject. And that is true notwithstanding the fact that I am told by a person with intimate knowledge of such things that our practice is very annoying to a fair number of judges in other districts.

Keep in mind that our court is very busy when it comes to criminal cases. On a per-judge basis, we rank 8th in the nation for criminal felony cases and 7th in the nation for supervised release violations. (See here, click on “Judicial Caseload Profiles for Nebraska and All District Courts for the 12-Month Period Ending September 30, 2016.”)

Anyway, we now have our per-judge sentencing numbers for fiscal 2015 and 2016. I have prepared eight tables that I reproduce below. Those tables provide an overview of the sentencing data presented to us by the Commission. What I would like from readers of Simple Justice is straightforward.  What do the following tables show to you? After I see those comments, a subsequent post (Part 2) will follow.  Part 2 will contain my thoughts on what the data show or do not show. I will also react to comments in Part 2.

Again, what do the following tables reveal to you?

District of Nebraska: Sentencing Statistics for fiscal years 2015 and 2016
(Excludes one active district judge who was recently appointed.)

Table 1–Sentences in months; all cases (n.1,132 (Nebraska))

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 2-Drug Trafficking Cases (n. 446)

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 3-Child Pornography (n.74)

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 4-Fraud (n.127)

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 5-Immigration (n.219) (Nebraska has long been a “fast track” district.)

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 6-Firearms (n.110)

MonthsNational NebraskaLSC-OmahaJFB-OmahaLES-OmahaJMG-LincolnRGK-Lincoln

Table 7-Compliance with Guidelines-Departures and Variances (n. 1,130)[1]

Position relative to Guideline rangeNational











Within range47.9%48.8%50.4%44.8%58.1%47.5%50.9%
All above2.3%1.7%2.1%1.1%1.9%1.8%0.9%
Gov’t below28.7%25.0%23.3%27.9%25.7%22.0%28.2%
Judge below21.0%24.4%24.2%26.1%14.3%28.7%20.0%

Table 8-As a percent, average extent of reduction of sentence for below Guideline sentences measured from low-end of applicable Guideline range (the “sentencing discount”)












All below cases49.2%50.4%45.1%50.6%51.9%49.4%64.2%
Gov’t below51.0%50.4%45.6%50.9%47.2%52.8%58.8%
Judge below46.7%50.4%44.6%50.4%60.9%46.8%71.0%

Richard G. Kopf
Senior United States District Judge (Nebraska)

[1] In tables 7 and 8, “Gov’t below”: (a) includes §5K1.1 Substantial Assistance Departures, §5K3.1 Early Disposition Program Departures and other government-sponsored below-range sentences; (b) does not include Rule 35 reductions for cooperation with the government that take place after sentencing. “Judge below” data do not include Rule 35 reductions either.

19 thoughts on “Kopf: The Question of Sentencing Disparity, Part 1

  1. SHG

    I never realized how criminally Nebraska was. That explains why there are no Club Meds there. Plus the weather.

  2. grberry

    As someone who was trained in statistics I see that none of the tables gives evidence of the distribution or standard deviation of these figures, thus it is impossible to tell if any of the differences are meaningful. That we don’t get any measure of the severity of the cases in each region reinforces to this difficulty.

    I do suspect from table 7 that since the total of government and judge departures below guideline in Nebraska is much closer to the national average than either of those sub-categories is by itself, there may be some offsetting mechanism where either or both judges or prosecutors are aware of how the other group is likely to rule and thus their own recommendations/decisions in marginal cases are unconsciously or consciously offsetting the tendency of the other group. But I’d want to see time series data to see if this is true.

    1. SHG

      Odd how standard deviation means something different to a lawyer/judge in a child porn case than to, say, my son, the MIT grad.

      1. Richard Kopf


        I like to think that that the data reveal that I am standardly deviant. All the best.


  3. David Meyer-Lindenberg

    Your Honor,

    at first glance, it looks like you’re a bit of a hanging judge. A mean sentence of 71 months, more than 50% above the national average! The highest in your district! What are you, heartless or something?

    We can check that hypothesis by looking at your caseload. It turns out that in contrast to the candy-ass crimes other federal judges get to relax with, you sentence a lot of people for drug trafficking and child porn. Drug trafficking cases alone are nearly half your caseload. The mean national sentence in that category is 67 months, a lot higher than the 44-month mean across all crimes. It’s even worse for child porn, where the average sentence is a cool 149 months. So even if you stuck rigorously to the national average for each category, you’d have a hard time looking like anything other than a hardass.

    That said, how do you sentence? It looks like you’re pretty lenient in some ways. For example, in 13 fraud cases, you handed out a mean sentence of 7 months, as opposed to the national average of 26. Your median fraud sentence is also a lot closer to the mean than is the case nationally, implying few outliers to your sentencing.

    In other ways, your sentencing resembles that of judges in other parts of the country. When you sentence child pornographers, you’re the only judge in the district whose punishments reflect the national average. Other Nebraska judges, some of whom actually handle more child porn cases than you do, uniformly impose lower average sentences.

    You’re also conventional, mostly, when it comes to dipping below the Guidelines. The frequency with which you do so reflects the national and Nebraska numbers. So does the ratio of sponsored to non-sponsored sentencing discounts. On the other hand, when someone gets a discount from you, it tends to be a bit more generous than if they’d gotten it from another Nebraska judge.

    But in one respect, you’re tougher than most of your colleagues, and that’s true nationally as well as locally. In drug trafficking cases – which, again, make up by far the biggest chunk of your caseload – your sentences come with a 40% premium over the national average. You’re not the only Nebraska judge to be tough on drugs, either: Judge Gerrard sentences even more traffickers than you do, and his mean sentence is nearly 15% longer than yours.

    So you’re tough on drugs. But are you tough and fair? The data strongly suggest you are. During FY 15-16, you went above the Guidelines in exactly one case (which may or may not have been drug-related.) So although you’re handing out comparatively long drug-trafficking sentences, you do so within normal parameters – essentially always.

    You only (“only”) handled 110 cases during FY 15-16, so we’re dealing with fairly small sample sizes here. But the portrait that emerges, as least as far as I can tell, is that of a judge who imposes sentence consistently and fairly for some pretty nasty crimes.

  4. Jim Ryan

    Numbers and statistics mean what we want them to mean. As a numbers/computer guy, I look and wonder how much variance is there from previous years, what changes are there or have there been and what are the underlying (supposed or proposed) causes.
    Earlier in your post you indicate that “regularly publishes each judge’s individual sentencing statistics.”
    The tables show the “National” aggregate numbers. This means that somehow the numbers are collected somewhere and to aggregate them there exists somewhere the individual numbers.
    With all this being said, I have an answer to:
    “What do the following tables show to you?”

    All that’s needed is a FOIA request for the underlying numbers.

    Information wants to be free.

  5. Ken Mackenzie

    At first glance I’d suspect people pray not to draw that mean ass Judge Kopf for a child pornography case. But justice is a hard thing to measure with statistics. Maybe Judge Kopf drew the worst cases that year. On reflection, I couldn’t draw any firm conclusion from these numbers.

    1. Charles

      “But justice is a hard thing to measure with statistics.”

      If not impossible. It’s cold comfort to one defendant that his sentence was too long but another defendant got off easy, so “on average” the judge is fair. But I don’t think that’s what Judge Kopf is after. If he was, a one-part post would have been sufficient.

      It appears that Nebraska has a more normal distribution of sentences than the nation does as a whole, with a median of 30 and a mean of 50 versus for Nebraska versus a median of 21 and a mean of 44 nationwide. In other words, it appears that judges nationwide typically may give shorter sentences than in Nebraska, but when other judges give a long sentence, they do so by a much greater extent than a Nebraska judge.

      However, there are two exceptions: Judge Strom on firearms and Judge Gerrard on drug trafficking. In both those cases, the mean is less than the median. From the numbers at the Court’s website, Senior Judge Strom had a small sample size (10), but Judge Gerrard had a standard number of cases (approx. 100). Very curious to know what caused that shift in the numbers for Judge Gerrard.

  6. losingtrader

    Light on firearms and tough on kiddie porn. That tells me you like shooting rabbits and don’t have a basement.

    1. Richard Kopf

      losing trader,

      You know damn well that I have a basement. By the way, ratting me out about plunking bunnies with high velocity .22 shorts is a low blow.

      All the best.


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