Kopf: The Luck Of The Draw

A legion of lawyers, judges and law professors hate the Sentencing Guidelines. I am not one of them. From the beginning, I thought that the Guidelines made sense because they held out the hope that unwarranted sentencing disparity could be addressed, if not eliminated.

When the poorly reasoned sentencing decisions by the Supreme Court came out that ultimately turned the Sentencing Guidelines into Swiss cheese (based, as they were, on a misreading of history at the time of the Founding[i]), we show ponies (federal judges) were off to the races. Always insanely jealous of our prerogatives, a large number of us began to sentence people as we liked despite what our colleagues down the hall did in similar circumstances.

We now know for certain that what sentence you receive in the same federal court in the same large city often depends upon what judge you draw, and the difference is frequently significant. U.S. Sentencing Commission, Intra-City Differences in Federal Sentencing Practices, Federal District Judges in 30 Cities, 2005 – 2017, p. 7 (2019) (stating simply: “In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”)[ii] (“Intra-City Differences”).[iii]

Let me give you an example of the federal court in Chicago between October 1, 2011, and September 20, 2017.

Id. at p. 22.

In plain terms, what does this graph mean?

This report focused on deviations from the low end of the applicable Guideline range.[iv] On average, judges in Chicago imposed sentences 28.1 percent below the guideline minimums.[v] That would be fine, as far it goes, if all the judges were on board. But, they weren’t.

The judge represented by the bar with the darkest red shade was the farthest from the city’s average in the positive direction[vi] with an average percent difference of 32.4 percentage points higher than the city average. The judge represented by the bar with the darkest blue shade was the farthest from the city’s average in the negative direction with an average percent difference of 17.0 percentage points lower than the city average. “The total spread of 49.5 is the absolute percentage difference between those two judges’ average percent differences.” Id. (footnote omitted) (Emphasis added).

The term “standard deviation” shown in the graph gets into wonky statistical stuff that is important, but not necessary, to pursue in any depth for present purposes. It is enough to state that in the example given for Chicago a standard deviation of 10.6 shows a wide dispersion from the mean—the mean being 28.1 percent below the applicable Guideline minimum. So, the 24 judges’ sentences in this example tended to vary widely from the City’s average percent difference from the Guideline minimum. In short, the judges in the Chicago courthouse were all over the place.[vii]

Significant sentencing disparity within most of the same courthouse in 30 large metropolitan cities comprising nearly 50 percent of all federal sentences[viii] is no longer debatable. The hope that motivated the Guidelines of avoiding similarly situated people being sentenced dissimilarly has been crushed. Federal criminal defendants are truly now subject to the luck of the draw.

Watch the following video. It’s only a little over three minutes. While it has some rough language, it perfectly illustrates the luck of the draw when it comes to federal sentencing. Besides, you have the time, or you wouldn’t have read this far.

Prelude: After a night at the bars, a man wakes in a room with a psychopath

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

[i] The assertion that juries, not judges, were uniformly responsible for sentencing at the time of the Founding, which assertion formed the foundation for blowing up the Guidelines and various state sentencing schemes, is flatly wrong as a historical matter. See Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Georgetown Law Review 183, 196 n.90 (2005) (stating that “in the late eighteenth century, . . . judges gained wide discretion to sentence defendants within broad ranges of years” and citing, as an example, An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112, 112-19 (1790) (creating thirteen crimes with sentencing ranges from one year to up to seven years’ imprisonment and one punishable by unlimited imprisonment and fines at the judge’s discretion, as well as six capital crimes)).

[ii] On the pages of this wonderful platform, Scott has allowed me to harp on sentencing disparity before. See Kopf: The Question of Sentencing Disparity, Part 1, Simple Justice (May 24, 2017), and Kopf: The Question of Sentencing Disparity, Part 2, Simple Justice (May 31, 2017). In those posts, I focused upon the difference in sentencing between Omaha and Lincoln, Nebraska.

[iii] The report has garnered remarkably little serious attention. I suspect that this is because it doesn’t fit the preferred narrative and because it is relatively recent.

[iv] To avoid the distorting effect of statutory mandatory minimums, those sentences were excluded if the mandatory minimum trumped the low end of the Guideline range. Intra-City Differences at p. 14. There were also other exclusions that I need not detail.

[v] In the cases analyzed by the Commission for this report, when judges imposed a sentence outside of the Guideline range, they departed or varied below the range nearly 21 times as often as they departed or varied above the range. Intra-City Differences at p. 18.

[vi] The terms “positive” or “negative” are directional from the low-end of the applicable Guideline range. The terms are not qualitative or pejorative.

[vii] Even if you took out one “outlier” judge (there is a statistical way of determining an “outlier” in a data set) Chicago’s spread (high judge v. low judge) remained significant at 32.9 percent and the standard deviation (judges clumped together v. judges spread apart) remained relatively high at 8.2. Id. at p. 106. It is important to remember that an “outlier” is not a qualitative or pejorative term and that the “outlier” judge still sentenced people.

[viii] In Lincoln, Nebraska, where Chief Judge Gerrard and I sit, I am happy to say that the two of us are pretty much on the same page. The same is roughly true where the remainder of our judges sit in Omaha. But, and as I have pointed out before, the sentencing differences between Omaha and Lincoln (Omaha relatively low and Lincoln relatively high) is not comforting if you worry about sentencing disparity. Omaha is 60 miles from Lincoln.

7 thoughts on “Kopf: The Luck Of The Draw

    1. Richard Kopf

      GD,

      I thought about putting the vid in a footnote. I love footnotes. That’s where the important, funny and sometimes ironic stuff resides. Most of the time, the text exists only as a platform for footnotes. For example: Footnote 9 in Blakely (‘The Federal Guidelines are not before us, and we express no opinion on them.’) is the biggest practical joke in the history of American law.

      All the best.

      RGK

  1. Mario Machado

    Judge Kopf,

    You say the SCOTUS decisions on the guidelines were poorly reasoned. Indeed, but aren’t the damn guidelines themselves poorly reasoned to begin with? I think they’re black box science, at best (e.g. why is 150 kg of Bolivian marching powder the starting point, why 450 kg?)

    This is tangential to the topic your post, but I couldn’t resist the opportunity to be a naive USSG instigator.

    Best to you, Judge,

    Mario

    1. Richard Kopf

      Mario,

      If the quantity of drugs must guide the Guidelines as the criminal statutes require, and the Sentencing Commission must construct a matrix with those statutes in mind, there is, without doubt, some degree of irrationality in base offense levels for drugs. Blame Congress (for all things) and particularly statutory mandatory minimums which of necessity skew the Guidelines for drugs (and sometimes other crimes–like kiddie porn). The Sentencing Commission has a statutory mandate that it must follow while trying to do so in a manner that is as rational as possible.

      As for you Mario, I love troublemakers. Thanks for making trouble.

      All the best.

      RGK

  2. B. McLeod

    This is but one facet of randomness in a system fraught with randomness from top to bottom. The criminal justice system, state and federal, is a giant “wheel of fortune.”

  3. Ray

    But the darkest red shade judge may have been given a higher percentage of the worst of the offenders, and the dark blue shade judge may have dealt with a higher average of those offenders deserving a bigger break at sentencing. So its possible that the bar graph is indicating that having advisory guidelines is actually working. If each judge is getting the same type of offender then I would have to agree that the apparent disparity is a concern. I can’t say that I would have a solution. Some criminal defendants who are guilty as sin get acquitted, some who are innocent (hopefully a rare occurrence) are wrongfully convicted.

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