oversight

Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001

Published by the Government Accountability Office on 2003-10-24.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

               United States General Accounting Office

GAO            Report to Congressional Requesters




October 2003
               FEDERAL DRUG
               OFFENSES
               Departures from
               Sentencing Guidelines
               and Mandatory
               Minimum Sentences,
               Fiscal Years 1999-2001




GAO-04-105 

                                                  October 2003


                                                  FEDERAL DRUG OFFENSES

                                                  Departures from Sentencing Guidelines
Highlights of GAO-04-105, a report to             and Mandatory Minimum Sentences,
congressional requesters
                                                  Fiscal Years 1999-2001



Created in 1984, the United States                Generally, downward departures are defined as (1) substantial assistance
Sentencing Commission (USSC)                      departures, made at the prosecutor’s request because the offender provided
was charged with developing the                   substantial assistance to the government; and (2) other downward
federal sentencing guidelines to                  departures made for other reasons, such as a plea agreement, a judge’s
limit disparities in sentencing                   consideration of mitigating factors, or early disposition, i.e., “fast track”
among offenders with similar
criminal backgrounds found guilty
                                                  programs initiated by prosecutors for low-level drug trafficking offenses.
of similar crimes. Judges determine
a specific sentence based on an                   Of federal sentences for drug-related offenses in fiscal years 1999-2001, the
applicable sentencing guideline                   majority (56 percent) was within applicable guideline ranges. Downward
range, such as 57 to 71 months,                   sentencing departures were more frequently due to prosecutors’ substantial
provided in the guidelines. Judges                assistance motions (28 percent) than for any other reasons (16 percent).
may impose sentences that fall
anywhere within the range, above it               For federal drug sentences that carried a mandatory minimum term of
(upward departures), or below it                  imprisonment, more than half of the drug sentences imposed fell below a
(downward departures). For some                   mandatory minimum. Of these, half fell below a minimum due to
offenses, Congress established
                                                  prosecutors’ substantial assistance motions and half due to other reasons.
mandatory minimum sentences.
Judges may also sentence below
the minimum in certain                            After adjusting for differences in offense and offender characteristics among
circumstances.                                    judicial circuits and districts, our analysis showed variations among certain
                                                  circuits and districts in the likelihood an offender received a substantial
We examined the differences in                    assistance departure, other downward departure, or a sentence falling below
drug offense departures from                      a mandatory minimum. However, these variations did not necessarily
sentencing guidelines and                         indicate unwarranted sentencing departures or misapplication of the
mandatory minimum sentences                       guidelines because data were not available to fully compare the offenders
among federal courts and the                      and offenses for which they were convicted.
documents the USSC used to
record and analyze sentences.
                                                  For drug sentences nationally, USSC receives 96 percent or more of the
                                                  three key documents, including the statement of reasons (SOR), used to
                                                  record sentence length and departures. For a small percentage of drug cases
We recommend that USSC and the                    in USSC’s database, information is missing, incomplete, or too difficult for
Administrative Office of the U.S.                 USSC to interpret, principally affecting sentencing analyses in districts
Courts (AOUSC) continue to                        where the missing or incomplete data are most prevalent.
collaborate on education programs
to encourage judges and other
                                                  Downward Departures for Federal Drug Sentences Imposed in FY 1999-2001
court officials to use AOUSC’s
standard statement of reasons form
(SOR), to complete the SOR more                                                          All criminal sentences     All drug sentences
effectively; and to revise the                                                            Number          Percent    Number     Percent
standard SOR to better meet the                    Sentences imposed                      175,245                     72,283
data collection needs of the USSC.                 Sentences with complete sentencing
                                                   information                            162,090           100%      69,279      100%
                                                   Sentences within guidelines            104,389            64%      39,138       56%
                                                   Downward departures
www.gao.gov/cgi-bin/getrpt?GAO-04-105.               Substantial assistance                29,247            18%      19,107       28%
To view the full product, including the scope 
      Other reasons                         27,474            17%      10,891       16%
and methodology, click on the link above. 

                                                  Source: GAO analysis of USSC data. 

For more information, contact William O.
Jenkins at (202) 512-8757 or 

jenkinswo@gao.gov. 

Contents 



Letter           
                                                                         1
                 Results in Brief 
                                                        3
                 Background
                                                               5
                 Federal Drug Sentences Departed Downward More Often Due to 

                    Substantial Assistance than for Other Reasons 
                      11
                 More Than Half of Drug Sentences Fell below an Otherwise 

                    Applicable Mandatory Minimum Sentence 
                              14
                 Likelihood of Sentences Departing Downward or Falling below a 

                    Mandatory Minimum Varied by Judicial Circuits and Districts 
        19
                 Opportunities Exist to Improve Sentencing Data Collection and 

                    Reporting                                                            21
                                                                                         

                 Conclusions                                                              
24
                 Recommendations                                                         
24
                 Agency Comments 
                                                         25

Appendix I       Objectives, Scope, and Methodology                                      28 

                 Objectives                                                              28

                 Scope                                                                   28

                 Methodology                                                             29


Appendix II 	    Percentage of Sentences Falling below an Applicable
                 Guideline Range or An Otherwise Applicable
                 Mandatory Minimum                                                       38



Appendix III 	   Likelihood of Sentences Falling below a Guideline
                 Range or an Otherwise Applicable Mandatory
                 Minimum                                                                 49



Appendix IV 	    Data for Analyzing Departures and Mandatory 

                 Minimum Sentences at Circuit and District Court 

                 Levels Limited                                                          61 

                 Documents USSC Requests from District Courts                            61

                 How USSC Uses Documents to Create Its Database                          61

                 USSC Receives Most of Requested Sentencing Documents                    62

                 USSC Takes Steps to Reduce Missing Document Rate                        63





                 Page i                                    GAO-04-105 Federal Drug Sentences
                Missing or Difficult to Interpret Information Can Affect Analysis of
                  Departures                                                              64
                USSC Actions to Improve Coding                                            65
                Multiple Reasons Cited for Missing Documentation and
                  Information                                                             65
                Other Downward Departures Do Not Solely Reflect Judicial
                  Discretion                                                              67

Appendix V      Comments from U.S. Sentencing Commission                                   75



Appendix VI 	   Comments from the Judicial Conference Committee
                on Criminal Law                                                            77



Appendix VI     GAO Contacts and Staff Acknowledgments                                     81
                GAO Contacts                                                              81
                Staff Acknowledgments                                                     81


Tables
                Table 1: Comparing Downward Departures Due to Substantial
                         Assistance and Other Reasons for All Federal Sentences
                         with Federal Drug Sentences, Fiscal Years 1999-2001              12
                Table 2: Numbers and Percents of Drug Cases Involving Different
                         Types of Offenses or Offenders, and Percentages of Each
                         Type Receiving Sentences Departing Downward from the
                         Guidelines                                                       29
                Table 3: Numbers and Percents of Drug Cases Involving Different
                         Types of Offenses or Offenders, and Percentages of Each
                         Type Receiving Sentences Departing Downward from the
                         Guidelines                                                       32
                Table 4: Hypothetical Example Showing Effect of Two Different
                         Methods of Computing Percentages for “Other Downward
                         Departures”                                                      34
                Table 5: Percentages of Drug Cases between 1999 and 2001
                         Resulting in Upward Departures, Within Range Sentences,
                         and Downward Departures, by Circuit                              39




                Page ii                                     GAO-04-105 Federal Drug Sentences
Table 6: Percentages of Drug Cases between 1999 and 2001
         Resulting in Upward Departures, Within Range Sentences,
         and Downward Departures, by District                            40
Table 7: Percentages of Mandatory Minimum Drug Cases between
         1999 and 2001 Resulting in Sentences at or above a
         Minimum, and below An Otherwise Applicable Minimum
         Due to Substantial Assistance or for Other Reasons, by
         Circuit                                                         44
Table 8: Percentages of Mandatory Minimum Drug Cases between
         1999 and 2001 Resulting in Sentences at or above the
         Minimum, and below An Otherwise Applicable Minimum
         Due to Substantial Assistance or For Other Reasons, by
         District                                                        45
Table 9: Odds on Substantial Assistance Departures and Other
         Downward Departures, and Odds Ratios Indicating the
         Differences between Circuits, before and after Adjusting
         for Offense and Offender Characteristics                        50
Table 10: Odds on Substantial Assistance Departures and Other
         Downward Departures, and Odds Ratios Indicating the
         Differences between Districts, before and after Adjusting
         for Offense and Offender Characteristics                        51
Table 11: Odds on Mandatory Minimum Sentences Falling below an
         Otherwise Applicable Mandatory Minimum for Substantial
         Assistance and for Other Reasons, and Odds Ratios
         Indicating the Differences between Circuits, before and
         after Adjusting for Offense and Offender Characteristics        56
Table 12: Odds on Mandatory Minimum Sentences Falling below an
         Otherwise Applicable Mandatory Minimum for Substantial
         Assistance and for Other Reasons, and Odds Ratios
         Indicating the Differences between Districts, before and
         after Adjusting for Offense and Offender Characteristics        57
Table 13: Percent of Missing Drug Sentencing Documents, by
         Circuit, as Shown in USSC’s Database for Fiscal Years
         1999-2001                                                       63
Table 14: Percent of Missing Drug Sentencing Information on
         Documents USSC Received, by Circuit, Fiscal Years 1999-
         2001                                                            64
Table 15: First Reason Provided by Judges for Other Downward
         Departure in Drug Sentences Nationwide, Fiscal Years
         1999-2001                                                       68




Page iii                                   GAO-04-105 Federal Drug Sentences
          Table 16: Second Reason Provided by Judges for Other Downward
                  Departure in Drug Sentences Nationwide, Fiscal Years
                  1999-2001                                                        72
          Table 17: Third Reason Provided by Judges for Other Downward
                  Departure in Drug Sentences Nationwide, Fiscal Years
                  1999-2001                                                        74


Figures
          Figure 1: Sentences Departing from Guideline Ranges and
                   Sentences Falling below a Mandatory Minimum                       2
          Figure 2: Geographical Boundaries of the 12 Regional Circuit
                   Courts of Appeals and 94 District Courts                          6
          Figure 3: Illustration of a Sentencing Guideline for an Offense of
                   Conviction Carrying a Mandatory Minimum                           8
          Figure 4: Percent of Substantial Assistance and Other Downward
                   Departures for Drug Sentences, by Circuit, Fiscal Years
                   1999-2001                                                       13
          Figure 5: Number of Districts by Percent of Drug Sentences
                   Departing Downward Due to Substantial Assistance or for
                   Other Reasons, Fiscal Years 1999-2001                           14
          Figure 6: Percent of Drug Sentences Meeting or below an
                   Otherwise Applicable Mandatory Minimum, Fiscal Years
                   1999-2001                                                       15
          Figure 7: Summary of Mandatory Minimum Drug Sentences below
                   an Otherwise Applicable Mandatory Minimum and
                   Departing Downward Compared with Sentences that Did
                   Not Carry a Mandatory Minimum, Fiscal Years 1999-2001           17
          Figure 8: Percent of Drug Sentences Falling below an Otherwise
                   Applicable Mandatory Minimum due to Substantial
                   Assistance or for Other Reasons, Fiscal Years 1999-2001         18
          Figure 9: Number of Districts by Percent of Sentences Falling
                   below an Otherwise Applicable Mandatory Minimum Due
                   to Substantial Assistance or Other Reasons, Fiscal Years
                   1999-2001                                                       19




          Page iv                                    GAO-04-105 Federal Drug Sentences
Abbreviations

AOUSC             Administrative Office of the U.S. Courts 

J&C               Judgment and Commitment Order 

PSR               Presentence Report 

SOR               Statement of Reasons 

USSC              U.S. Sentencing Commission 



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Page v                                               GAO-04-105 Federal Drug Sentences
United States General Accounting Office
Washington, DC 20548




                                   October 24, 2003 


                                   The Honorable F. James Sensenbrenner 

                                   Chairman 

                                   Committee on the Judiciary 

                                   House of Representatives 


                                   The Honorable Howard Coble 

                                   Chairman 

                                   Subcommittee on Crime, Terrorism,

                                    and Homeland Security
                                   Committee on the Judiciary
                                   House of Representatives

                                   The Sentencing Reform Act of 19841 established the independent U.S.
                                   Sentencing Commission (USSC) and charged it with developing the
                                   Federal Sentencing Guidelines. The guidelines were intended to avoid
                                   unwarranted disparities in sentences among defendants with similar
                                   criminal records who were found guilty of similar criminal conduct
                                   without eliminating the thoughtful imposition of individualized sentences.2
                                   To foster this goal, the guidelines specify sentencing guideline ranges—a
                                   range of time (in months)—that offenders should serve given the nature of
                                   their offense and other factors but also permit sentences to depart upward
                                   or downward from guideline ranges due to aggravating or mitigating
                                   circumstances. For certain types of offenses, including certain drug and
                                   weapons offenses, Congress has statutorily specified mandatory minimum
                                   sentences that supplant the otherwise applicable guidelines range (see fig.
                                   1). Judges may impose sentences that depart downward from established
                                   guidelines or fall below a mandatory minimum at the request of the
                                   prosecution because the defendant has provided substantial assistance to
                                   the government. USSC designates sentences departing downward for this
                                   reason as substantial assistance departures. 3 A judge may also depart
                                   downward as a result of accepting a plea agreement or after considering
                                   characteristics of the offender or the offense not fully covered in the



                                   1
                                    18 U.S.C. 3551 et seq., 28 U.S.C. 991-998.
                                   2
                                    28 U.S.C. 991(b)(1)(B); see also S. Rep. No. 98-225, p. 52 (1983).
                                   3
                                    See 18 U.S.C. 3553(e).



                                   Page 1                                                  GAO-04-105 Federal Drug Sentences
                                                         guidelines, such as extraordinary rehabilitation efforts after the offense
                                                         but prior to sentencing. To distinguish such sentences from substantial
                                                         assistance sentences, USSC designates them as “other downward
                                                         departures” as part of its data gathering efforts.

Figure 1: Sentences Departing from Guideline Ranges and Sentences Falling below a Mandatory Minimum


                                                  Higher offense                                 Range
                                                  level                                          maximum



                                                                    Applicable guideline range


                              Mandatory
                              minimum

                                                               
                                                                                                           
                                                                                                           
                                                                                                 Range
    Sentences that fall below the sentencing guideline                                           minimum       Sentences that fall below the
    range, (including sentences for which the offense of
                                                                                                              applicable mandatory minimum.
    conviction did not carry a mandatory minimum).
                                                                                                          
                                                  Lower offense
                                                  level


Sources: USSC 2002 guidelines and GAO analysis.



                                                         As you requested, this report discusses downward departures for federal
                                                         drug offenses. We identified the extent to which federal drug sentences
                                                         departed downward from a guideline range determined by the court or fell
                                                         below an applicable mandatory minimum in fiscal years 1999-2001. Our
                                                         objectives were to (1) identify the percentage of federal sentences, and,
                                                         specifically, those for drug-related offenses, departing downward due to
                                                         substantial assistance motions or other reasons; (2) identify the
                                                         percentage of federal drug sentences that fell below an applicable
                                                         mandatory minimum due to substantial assistance motions or other
                                                         reasons; (3) compare the likelihood across judicial circuits and districts
                                                         that offenders received downward departing sentences or sentences
                                                         below a mandatory minimum; and (4) identify limitations, if any, of USSC’s
                                                         sentencing data for drug offenses.

                                                         To meet these objectives, we obtained USSC’s sentencing database for
                                                         fiscal years 1999 through 2001 and used its coding scheme to identify
                                                         (1) sentences departing downward due to a prosecutor’s substantial
                                                         assistance motion (substantial assistance departures); (2) sentences that



                                                         Page 2                                        GAO-04-105 Federal Drug Sentences
                   departed downward for other reasons (other downward departures); and
                   (3) sentences that fell below an applicable mandatory minimum. We used
                   the offender and offense characteristics in USSC’s database to statistically
                   control for major differences among circuits and districts in the types of
                   offenders sentenced and the offenses for which they were sentenced.
                   However, it is important to note that a variety of other variables, such as
                   an offender’s extraordinary rehabilitation efforts after the offense but
                   prior to sentencing, could affect departure decisions, but data for these
                   variables are not readily available.

                   We also reviewed the types of documents USSC staff used to identify
                   departures, the reasons for those departures, and the number of missing
                   documents by circuit and district. We interviewed officials at USSC and
                   the Administrative Office of the U.S. Courts (AOUSC), the administrative
                   arm of the federal judiciary, and the Chair, Committee on Criminal Law of
                   the Judicial Conference of the United States, the judiciary’s principal
                   policymaking body. We conducted our work between March and August
                   2003 in Washington, D.C., in accordance with generally accepted
                   government auditing standards. Appendix I includes a more detailed
                   description of our scope and methodology. Appendixes II and III provide
                   more detailed descriptions of how we applied our methodology.


                   Federal judges imposed 175,245 sentences subject to the federal
Results in Brief   sentencing guidelines in fiscal years 1999-2001. Of the 162,090 sentences
                   for which complete departure information was available, the majority of
                   all federal criminal sentences (64 percent) as well as drug sentences
                   (56 percent) were within applicable guideline ranges. Of the federal
                   sentences that departed downward, 18 percent departed downward due to
                   prosecutors’ substantial assistance motions and 17 percent departed
                   downward due to other reasons. Federal drug sentences imposed during
                   the same period departed downward more frequently due to prosecutors’
                   substantial assistance motions (28 percent) than for other reasons
                   (16 percent).4




                   4
                    Other reasons that sentences departed downward included early disposition, that is, “fast
                   track,” programs initiated by prosecutors; plea agreements; and judges’ consideration of
                   mitigating circumstances. See appendix IV for more information on the frequency of
                   reasons cited for other downward departures.




                   Page 3                                               GAO-04-105 Federal Drug Sentences
Of 68,670 federal drug sentences imposed during fiscal years 1999-2001
with complete departure and sentence length information, 41,861 carried a
mandatory minimum term of imprisonment. Of these, more than half
(52 percent) fell below an otherwise applicable mandatory minimum
sentence. An equal proportion of sentences fell below an otherwise
applicable mandatory minimum due to substantial assistance (26 percent)
as for other reasons, such as the safety valve (26 percent).

After taking into account differences in offender and offense
characteristics across the 12 judicial circuits and 94 districts, our
statistical analysis showed major variation among certain judicial circuits
and districts in the likelihood of an offender receiving a substantial
assistance departure, other downward departure, or a sentence falling
below a mandatory minimum. For example, offenders sentenced in the
Third Circuit during fiscal years 1999-2001 were over 3 times more likely to
receive a substantial assistance departure at a prosecutor’s initiative than
offenders sentenced in the First Circuit. Further, the odds that an offender
would be granted an “other downward departure” also varied substantially
across circuits. For example, offenders sentenced in the Ninth Circuit
were over 18 times more likely to have received an other downward
departure than offenders sentenced in the Fourth Circuit. We analyzed the
extent to which sentences departed below applicable guidelines on
average nationally; however, we did not compare the degree to which the
length of the departures varied across circuits and districts. Finally, it is
important to note the departure differences among circuits and districts
that we found may not, in and of themselves, indicate unwarranted
sentencing departures or misapplication of the guidelines. Empirical data
on all factors that could influence sentencing were not available, and so an
analysis that could fully explain why sentences varied was not possible.

USSC data were generally sufficient for our analyses of downward
departures and mandatory minimum sentences across circuits and for the
great majority of districts. USSC’s sentencing data are based on
information from five documents usually produced for each case during
the sentencing process, but it principally relies on three of them—the
Judgment and Commitment Order (J&C), Statement of Reasons (SOR),
and Presentence Report (PSR)—to identify the length of sentences
imposed, departures, and the reasons for departures. For drug sentences
nationally, USSC receives 96 percent or more of these three key
documents. For a small percentage of drug cases nationally, information
regarding departures or the reasons for departures is lacking in USSC’s
database because documents are missing, incomplete, or too difficult for
USSC to interpret. Opportunities for improving USSC data exist.


Page 4                                       GAO-04-105 Federal Drug Sentences
             In order to improve USSC’s data on federal drug sentences, we are making
             recommendations that USSC and AOUSC collaborate to improve the
             collection and recording of sentencing information through education
             programs, further revision of the standard SOR, and notification of Chief
             Judges of unclear, incomplete or difficult to interpret information received
             from their districts. On October 10, 2003, we received official written
             comments on a draft of our report from USSC and the Chair of the Judicial
             Conference Committee on Criminal Law that generally agreed with our
             recommendations (see app. V). However, the Chair of the Criminal Law
             Committee noted that our report did not sufficiently distinguish downward
             departures that are due to judicial discretion from those that are due to
             prosecutorial discretion. As a result, according to the Committee, the
             category “other downward departures” invites confusion, and some may
             mistakenly attribute all such departures to judges. We state in our report
             that all other downward departures are not attributable to judicial
             discretion and that data were not available to fully distinguish sentences
             that are attributable to judicial discretion from those due to prosecutorial
             discretion. USSC, AOUSC, and Department of Justice also provided
             technical comments that we incorporated as appropriate.


             The United States is divided into 94 federal judicial districts, each
Background   containing the federal trial courts, where criminal and civil cases are tried.
             Congress placed each of the 94 districts in 1 of 12 regional circuits, each
             containing a court of appeals, to which district court decisions may be
             appealed. Figure 2 is a map of the United States showing the geographical
             boundaries of the 94 district courts and the 12 regional circuit courts of
             appeals (including 11 numbered circuits and the District of Columbia
             Circuit.). There is also a Court of Appeals for the Federal Circuit with
             nationwide jurisdiction for specific types of cases, such as patent appeals.
             This court does not hear cases involving the federal sentencing guidelines.




             Page 5                                        GAO-04-105 Federal Drug Sentences
Figure 2: Geographical Boundaries of the 12 Regional Circuit Courts of Appeals and 94 District Courts



                                                                                                                                                                                                             Puerto
                                                                                                                                                                                                              Rico

                                                                                                                                                                       2                             1
                    W
                        E                              9                                                                                                                       N           Vt.               Maine
                        Wash.                                                                      8                                                                       N.Y.            Conn.
                                             Mont.
                                                                                                                                                     6                 W           S
                                                                                                                                                                                                               N.H.
                                                                                       N.Dak.                                                                                      N.Y.-E
                    Ore.                                                                                                                         W                                                             Mass.
                                                                                                       Minn.
                                Idaho                                                                                      W                                                                                   R.I.
                                                                                       S.Dak.                                  Wis.                  W         E
                E                                                                                                                   E    7               Mich.
                                                                                                                N                                                      N
                                                                                                                                                                                               M         3
                         Nev.                                                                           Iowa                        N     N                                               Pa. E
                                                                  Wyo.                   Nebr.              S                                                 Ohio                      W            N.J.
            N
                                                                                                                                    Ill. Ind.                  S                                     Del.
                                                                                                                                C
                Calif.                                                                                      Mo.                          S                                                                    Virgin
                                                      Utah                                                                           S                       Ky. E
                                                                                                                    E                                W                                                       Islands
                                                                     Colo.
                        C                                                             Kans.
                                                                                                             W                                        M E
                                                                                                                                                 W Tenn.
                                                                                                                                                                                       4
                                 Ariz.                                                                      W
                        S                                                                                           E                                                                          Md.
                                                                                                            Ark.                                                                   N
                                                                                          N                                                                                W.Va.           E
                                                                                      W Okla.E                                                                                                      D.C.
                                                                 N.Mex.
                                                                                                                                                                               S       W Va.       Circuit
                                                                               10                                                         11                                           M E
                                         9                                                                                                               N
                                                                                                                                                                               W        N.C.       Federal
                                                                                                                                                 N                                                 Circuit
                                                                                                                                                                                   S.C.
                                                                                                        5                 N                   Ala.           Ga.
                            Alaska                                                        N                                                          M M           S
                                                      Hawaii                                                            Miss.                S
                                                                                                                    W                                 N
                                                                                              Tex.      E        La.                                               M
                                                                                  W                                 M       S
                                                                                                                                                                   Fla.
                                                                                                                                                                           S
                                                                                               S
                        Guam         Northern
                                     Mariana
                                      Islands
                                                                     Districts within states = C(entral)                W(estern)
                                                                                               M(iddle)                 S(outhern)
                                                                                               N(orthern)               E(astern)


Sources: Administrative Office of the U.S. Courts and GAO (data); copyright © Corel Corp. All rights reserved (map).



                                                                    In 1984, to help ensure that similar crimes committed by similar criminals
                                                                    were punished with similar sentences, Congress, under the Sentencing
                                                                    Reform Act, established the U.S. Sentencing Commission (USSC) and
                                                                    directed that it develop a comprehensive sentencing scheme for federal
                                                                    crimes.5 USSC established guideline ranges for the length of federal prison


                                                                    5
                                                                     28 U.S.C. 994.




                                                                    Page 6                                                                                    GAO-04-105 Federal Drug Sentences
sentences taking into account offender and offense characteristics to
establish appropriate sentence terms. The sentencing guidelines cover
more than 90 percent of all felony and Class A misdemeanor cases in the
federal courts. The sentencing guidelines do not apply to Class B or C
misdemeanors or infractions, offenses with a maximum prison exposure
of 6 months or less.6

Applying USSC’s guidance, federal district judges in the 94 federal district
courts determine the appropriate sentencing guideline range for an
offender based on various factors related to (1) the offense and (2) the
offender. The offense is assigned an offense level, which for drug offenses
is based on several factors such as the quantity and type of drug involved
and whether the offense involved violence. The offender is also assigned a
criminal history category based on the number of criminal history points.
Criminal history points reflect the severity of an offender’s prior criminal
record. Taken in combination, the offense level and criminal history
category correlate with a sentencing guideline range, which is expressed
in months. In addition, for some drug offenses where a mandatory
minimum sentence applies, the applicable mandatory minimum sentence
supplants the lower end of the applicable guidelines sentencing range. For
example, as shown in figure 3, a convicted offender whose offense of
conviction is assigned an offense level of 25 and who has a “criminal
history category I” should be sentenced between a maximum of 71 months
and a minimum of 57 months under the sentencing guidelines unless a
mandatory minimum greater than 57 months (e.g., 60 months) is required.
A sentence less than 60 months falls below the applicable mandatory
minimum.




6
See USSC 2002 Guidelines, 1B1.9 and ch. 1, pt. A, intro. comment. 5.




Page 7                                               GAO-04-105 Federal Drug Sentences
Figure 3: Illustration of a Sentencing Guideline for an Offense of Conviction Carrying a Mandatory Minimum




                                         The guidelines also permit sentences that fall above or below an
                                         applicable guidelines range, often called upward or downward departures,
                                         respectively, in certain circumstances. As illustrated in figure 3, a sentence
                                         of more than 71 months would depart upward from the applicable
                                         guideline range while a sentence of less than 57 months would depart
                                         downward, falling below the lower end of the guideline range.

                                         At the request of the prosecution, the judge may depart downward
                                         because the defendant has provided substantial assistance to the
                                         government—what USSC designates as substantial assistance departures.
                                         But the guidelines also provide that a judge may depart downward if the
                                         court finds certain mitigating circumstances exist that were not adequately
                                         taken into consideration by USSC in formulating the guidelines that should




                                         Page 8                                           GAO-04-105 Federal Drug Sentences
result in a sentence below the guideline range.7 To assist sentencing
courts, the guidelines list both encouraged departure factors (such as
coercion or duress, diminished capacity, or aberrant behavior of non-
violent offenders) and discouraged though permissible departure factors
(such as age, physical condition, family responsibilities, or prior good
works).8 Judges may also consider other, unmentioned factors that were
not adequately considered by the guidelines (such as extraordinary
rehabilitation after the offense but prior to sentencing). USSC designates
consideration of encouraged, discouraged, and unmentioned factors as
“other departures.” Judges are required to explain the reasons for
departing from the guidelines. The recently enacted PROTECT Act of 2003
makes clear that the reasons must be specific, written, and provided to
USSC.9

USSC maintains a database that records a variety of data on the offenders
and offenses for which sentences are imposed. Judges must comply with
USSC’s data collection needs by furnishing a written report of the
sentence, and the PROTECT Act makes clear that specific sentencing
documents must accompany that report.10 Included in these data is
information on whether the sentences imposed fell within or outside the
applicable sentencing guidelines range as determined by the sentencing
judge. Information on the incidence of sentencing outside of the guideline
ranges is used by USSC to identify areas where the sentencing guidelines
may need adjustment. Congress, under the PROTECT Act, directed USSC
to review the grounds of downward departures that are authorized by its
sentencing guidelines, policy statements, and official commentary, and to
promulgate amendments to ensure that the incidence of downward
departures is substantially reduced. The required amendments to the
sentencing guidelines are due October 27, 2003.11

As previously noted, various drug offenses carry a mandatory minimum.12
For such offenses, the mandatory minimum precludes judges from


7
See 18 U.S.C. 3553(b); USSC 2002 Guidelines, ch. 5, pt. K, sec. 2. 

8
See USSC 2002 Guidelines., 5K2.0 and ch. 5, pt. H, intro. comment. 

9
See P.L. 108-21 (April 30, 2003), sec. 401(c), amending 18 U.S.C. 3553(c). 

10
    See id., sec. 401(h), amending 28 U.S.C. 994(w). 

11
    See id., sec. 401(m)(1), (2)(A).

12
    See 21 U.S.C. 841, 844, 846, 960, 963.





Page 9                                                   GAO-04-105 Federal Drug Sentences
sentencing at a lower guideline range minimum or from granting a
downward departure that might otherwise be available, unless one of two
statutory provisions applies. First, a judge may impose a sentence below
the applicable mandatory minimum if the government (the federal
prosecutor) files a motion with the court for such sentencing relief
because of the defendant’s “substantial assistance” in the investigation or
prosecution of another person.13 The discretion to make such a motion
rests solely with the prosecutor. Second, in the absence of a substantial
assistance motion, the “safety valve” provision affords relief from any
otherwise applicable mandatory minimum sentence for drug offenders
who have minimal criminal history (i.e., no more than 1 criminal history
point); were not violent, armed, or high-level participants; and provided
the government with truthful information regarding the offense. In these
cases, the court is directed by statute to impose a sentence pursuant to the
sentencing guidelines without regard to a mandatory minimum.14

As incorporated in USSC’s sentencing guidelines, both the substantial
assistance and the safety valve provision may affect sentencing for
offenders whose offense of conviction does not carry a mandatory
minimum sentence—that is, whose sentences are solely governed by the
application of the sentencing guidelines. For such offenders, a substantial
assistance motion permits the judge to depart downward from the
applicable guidelines range.15 With respect to the safety valve, the
sentencing guidelines provide offenders who are convicted of certain drug
offenses and who meet the legislative safety valve requirements a 2-level
decrease to their base offense level, for example, from level 25 to level 23.16




13
 See 18 U.S.C. 3553(e). 

14
 See id. 3553(f). 

15
 See USSC 2002 Guidelines, sec. 5K1.1. 

16
 See id., secs. 2D1.1(b)(6); 2D2.1(b)(1). 





Page 10                                       GAO-04-105 Federal Drug Sentences
                         The majority of federal sentences fell within an applicable guideline range,
Federal Drug             but when sentences departed downward, or fell below a guideline range,
Sentences Departed       they did so about as often due to substantial assistance as to other
                         reasons. Of the 162,090 federal sentences from fiscal years 1999-2001 for
Downward More            which complete sentencing information was available, most were within
Often Due to             the guideline ranges determined by the court (64 percent), and about an
                         equal proportion of sentences departed downward due to substantial
Substantial Assistance   assistance (18 percent) as for other reasons (17 percent).17
than for Other
Reasons                  Similar to federal sentences overall, of the 69,279 drug sentences for which
                         complete departure information was available, we found that most
                         sentences were within guideline ranges (56 percent). Unlike federal
                         sentences overall, from fiscal years 1999 to 2001, federal drug sentences
                         departed downward more frequently due to substantial assistance
                         (28 percent) than other reasons (16 percent), as shown in table 1. Other
                         reasons that drug sentences departed downward included early
                         disposition, that is, fast track, programs initiated by prosecutors; plea
                         agreements; and judges’ consideration of mitigating circumstances. See
                         appendix IV for more information on the frequency of reasons cited for
                         other downward departures.




                         17
                           Since circuits and districts may vary widely in the number of offenders and type of
                         offenses for which they are convicted, analyses that identify the percent of cases that fell
                         below an applicable guideline range or a mandatory minimum do not provide a fair basis
                         for comparing sentencing practices across circuits and districts. For example, a greater
                         proportion of offenders appearing before a district court who possessed and shared
                         information of a crime that assisted the government in the investigation or prosecution of
                         others or whose offenses were less serious may influence the frequency of sentences that
                         fell below an applicable guideline range. Taking various offender and offense
                         characteristics into account to identify the likelihood of a sentence falling below a
                         guideline range or a mandatory minimum provides a more accurate picture of variation in
                         sentencing across circuits and districts. We provide this statistical analysis later in the
                         report. See appendix I for more information on the limitations of percentages as a basis for
                         comparison.




                         Page 11                                               GAO-04-105 Federal Drug Sentences
Table 1: Comparing Downward Departures Due to Substantial Assistance and Other
Reasons for All Federal Sentences with Federal Drug Sentences, Fiscal Years 1999-
2001

                                        All criminal sentencesa           All drug sentences
                                           Number         Percent           Number        Percent
    Sentences imposed                      175,245                            72,283
    Sentences with complete
    sentencing information                 162,090b           100            69,279
                                                                                     b
                                                                                              100
    Sentences within guidelines            104,389              64            39,138           56
                                                                  c                                c
    Upward departures                           980                              143
    Downward departures
       Substantial assistance                29,247             18            19,107           28
       Other reasons                         27,474             17            10,891           16
Source: GAO analysis of USSC Data.
a
    Includes only offenders who were sentenced under the Federal Sentencing Guidelines.
b
 The USSC database lacked departure information on a total of 12,630 (7 percent) of all federal
sentences; of these, the USSC database lacked departure information on 3,004 (4 percent) federal
drug sentences. An additional 525 sentences were missing offense type information.
c
    Less than 1 percent.


Prosecutors’ substantial assistance motions resulted in downward
departing sentences that were on average 49 percent of the average lowest
sentence drug offenders otherwise would have received under the
guidelines. Other downward departures resulted in sentences that were on
average 57 percent of the average lowest sentence drug offenders
otherwise would have received under the guidelines. See appendix I for
more detailed information on sentence reductions.

The percentage of drug sentences that departed downward due to
prosecutors’ substantial assistance motions or for other reasons varied
across judicial circuits in fiscal years 1999–2001, as shown in figure 4.




Page 12                                                     GAO-04-105 Federal Drug Sentences
Figure 4: Percent of Substantial Assistance and Other Downward Departures for Drug Sentences, by Circuit, Fiscal Years
1999-2001




                                        The percentages of drug sentences departing downward differed notably
                                        across the 94 districts, even in some cases among districts within the same
                                        circuit. Figure 5 shows the 94 judicial districts grouped according to the
                                        percent of sentences imposed in districts that departed downward due to
                                        substantial assistance and for other reasons. In 55 districts, more than
                                        30 percent of sentences departed downward due to substantial assistance,
                                        while in only 5 districts more than 30 percent of the sentences departed
                                        downward due to other reasons. However, these percentage differences
                                        do not take into account differences in offender and offense
                                        characteristics that may contribute to differences among circuits and
                                        districts.




                                        Page 13                                          GAO-04-105 Federal Drug Sentences
Figure 5: Number of Districts by Percent of Drug Sentences Departing Downward Due to Substantial Assistance or for Other
Reasons, Fiscal Years 1999-2001

Number of districts
80
                 71
70


60


50


40


30
                                                           25
                            19
20
                                     13   14                                  14
                                                                                                    12
10      6                                        5                                                              4
                                                                    3
                                                                                       0                   1           1
 0
        0 to 10%            11 to 20%     21 to 30%        31 to 40%          41 to 50%             51 to 60%   Over 60%


                                                                Substantial assistance departures

                                                                Other downward departures

Source: GAO analysis of USSC data.




                                                      Of 41,861 federal drug sentences included in our analysis that carried a
More Than Half of 
                                   mandatory minimum term of imprisonment, more than half (52 percent)
Drug Sentences Fell                                   fell below an otherwise applicable mandatory minimum sentence. These
                                                      sentences were split equally among those that fell below an otherwise
below an Otherwise                                    applicable mandatory minimum sentence due to substantial assistance
Applicable Mandatory                                  (26 percent) and those that fell below for other reasons, such as the safety
                                                      valve (26 percent).18 (See fig. 6.)
Minimum Sentence

                                                      18
                                                       If a sentence fell below a mandatory minimum sentence and involved a substantial
                                                      assistance motion, we described the sentence as a “substantial assistance sentence falling
                                                      below.” If a sentence otherwise fell below, we described that sentence as falling below
                                                      because of “other reasons.” The data indicated that most, but not all, of sentences falling
                                                      below for other reasons involved the safety valve provision, which is the only mechanism
                                                      by which a judge may disregard a mandatory minimum in the absence of a substantial
                                                      assistance motion. Reasons for 681 drug sentences falling below a mandatory minimum
                                                      were not clearly indicated on the sentencing documents, according to USSC officials. Our
                                                      analysis included these sentences as falling below a mandatory minimum for other reasons.




                                                      Page 14                                                       GAO-04-105 Federal Drug Sentences
Figure 6: Percent of Drug Sentences Meeting or below an Otherwise Applicable
Mandatory Minimum, Fiscal Years 1999-2001


                                           Below mandatory
                                           minimum because of
                                           substantial assistance



              26%


                                     48%   Meeting
                                           mandatory
                                           minimum
               26%




                                           Below mandatory
                                           minimum for other
                                           reasons such as the
                                           safety valve
Source: GAO analysis of USSC data.



Nearly all of the mandatory minimum drug sentences carried either a
5-year (48 percent) mandatory minimum or a 10-year minimum
(49 percent). On average, prosecutors’ substantial assistance motions
reduced drug offenders’ 5-year mandatory minimum sentence by
33 months. Sentences lowered for other reasons, such as the safety valve,
that would otherwise be subject to a 5-year mandatory minimum were
reduced by an average of 26 months. On average, prosecutors’ substantial
assistance motions reduced drug offenders’ 10-year mandatory minimum
sentences by 63 months, and sentences lowered for other reasons that
would otherwise be subject to a 10-year mandatory minimum were
reduced by an average of 52 months. See appendix I for more detailed
information on sentence reductions.

Figure 7 provides a summary of the number and percent of federal drug
sentences that fell below a mandatory minimum or guideline range
compared with sentences that did not carry a mandatory minimum.
Almost all of the sentences (99 percent) that fell below a mandatory
minimum due to substantial assistance also departed downward from an
applicable guideline range, whereas only a quarter of sentences that fell
below an otherwise applicable mandatory minimum for other reasons also


Page 15                                          GAO-04-105 Federal Drug Sentences
departed downward from an applicable guideline range. These percentage
differences do not take into account offender and offense characteristics
that may contribute to differences among circuits and districts.




Page 16                                    GAO-04-105 Federal Drug Sentences
Figure 7: Summary of Mandatory Minimum Drug Sentences below an Otherwise Applicable Mandatory Minimum and
Departing Downward Compared with Sentences that Did Not Carry a Mandatory Minimum, Fiscal Years 1999-2001




                                     Note: Of the 72,283 federal drug sentences imposed during fiscal years 1999-2001, 3,004 lacked
                                     complete information on departure status and 609 lacked sentence length information needed to
                                     identify sentences that fell below a mandatory minimum. These sentences were omitted from this
                                     analysis.


                                     In 7 of the 12 Circuits, more sentences fell below a mandatory minimum
                                     due to substantial assistance motions than for other reasons, as figure
                                     8 shows.




                                     Page 17                                                   GAO-04-105 Federal Drug Sentences
Figure 8: Percent of Drug Sentences Falling below an Otherwise Applicable Mandatory Minimum due to Substantial
Assistance or for Other Reasons, Fiscal Years 1999-2001

Percentage
50



                                                         40                                    39
40                                                                                                                                   38
                                               34                                      34                                                      34

                                          30                                                                          31
                    30                                                                                                                                   29
30                                                  29
      28                                                                                                                        27
                                                                     25                                     24
           24
                                                              22                                                                          22        23
                                     19                                           20
20
                          17                                                                                     17        16
                                                                          12                           13

10



 0
     National          DC             First    Second     Third       Fourth        Fifth       Sixth       Seventh   Eighth    Ninth     Tenth     Eleventh
      Circuit
     Average


                                                                   Substantial assistance sentences below

                                                                   Sentences below for other reasons

Source: GAO analysis of USSC data.



                                                         In addition to these differences among the circuits, across the 94 districts
                                                         the percentage of sentences meeting or below an otherwise applicable
                                                         mandatory minimum substantially varied. Figure 9 shows the 94 judicial
                                                         districts grouped according to the percent of sentences imposed that fell
                                                         below an otherwise applicable mandatory minimum due to substantial
                                                         assistance and for other reasons. In 40 districts, more than 30 percent of
                                                         sentences fell below an otherwise applicable mandatory minimum due to
                                                         substantial assistance whereas in 16 districts more than 30 percent fell
                                                         below for other reasons. Appendix II has more details on our analysis of
                                                         sentences for which the offense of conviction carried a mandatory
                                                         minimum sentence.




                                                         Page 18                                                       GAO-04-105 Federal Drug Sentences
Figure 9: Number of Districts by Percent of Sentences Falling below an Otherwise Applicable Mandatory Minimum Due to
Substantial Assistance or Other Reasons, Fiscal Years 1999-2001

Number of districts
50
                                     45


40



30                                        28

                                                          22
                 20
20                          19

                                                 13
                                                                    10
10                                                                            9
        7                                                                                       7
                                                                                      4
                                                                                                       1      2      1
 0
        0 to 10%            11 to 20%     21 to 30%       31 to 40%           41 to 50%        51 to 60%      Over 60%

                                                                Sentences falling below a mandatory minimum
                                                                due to substantial assistance
                                                                Sentences falling below a mandatory minimum
                                                                for other reasons
Source: GAO analysis of USSC data.




                                                      The percentage differences among circuits and districts suggest that
Likelihood of                                         variation existed in the way courts sentenced offenders; however, as
Sentences Departing                                   discussed earlier, these percentages do not take into account factors such
                                                      as the offender and offense characteristics that may affect sentencing
Downward or Falling                                   within a circuit or district. For example, in addition to the number of
below a Mandatory                                     deportable aliens potentially affecting the percent of other downward
                                                      departures, some circuits and districts, when compared with others, could
Minimum Varied by                                     sentence a greater proportion of offenders who possessed and shared
Judicial Circuits and                                 information of the crime that assisted the government in the investigation
Districts                                             or prosecution of others. Therefore, a larger percent of offenders in those
                                                      circuits and districts could have received a decrease in their sentence due
                                                      to substantial assistance. Recognizing that judicial circuits and districts
                                                      differed in the types of offenders sentenced and the offenses for which the
                                                      offenders were sentenced, our analysis adjusted for differences such as
                                                      race, gender, offense, criminal history, and offense severity (see appendix
                                                      I for a complete list of variables included in our analysis). Although these




                                                      Page 19                                                     GAO-04-105 Federal Drug Sentences
are the major factors that could affect the likelihood of an offender
receiving a departure, they are not all-inclusive.

We used adjusted odds ratios to estimate how circuits and districts vary in
sentencing practices. An adjusted odds ratio in this case indicates whether
a departure is statistically less likely, as likely, or more likely to occur in
one circuit as in another. We can describe how much more likely or less
likely a substantial assistance departure was to occur in one jurisdiction
versus another; for instance, we can estimate that a substantial assistance
departure was 20 percent less likely to occur or 3.6 times more likely to
occur in one circuit compared with another. Our analysis focused on
adjusted odds ratios since they provide us with our best estimates of
differences across circuits and districts after taking into account the
differences in drug cases handled across jurisdictions.

Using adjusted odds ratios to estimate the likelihood of an offender
receiving a substantial assistance departure, we can see that percentage
differences can be misleading. In comparing percentages of substantial
assistance sentences in the Eighth Circuit (37 percent) with other circuits,
it appears that in 5 circuits –D.C. (30 percent), the Second (32 percent),
Fourth (33 percent), Seventh (31 percent), and Eleventh Circuits
(30 percent)— fewer offenders received substantial assistance departures.
But taking into account differences of offenders and offense
characteristics, adjusted odds ratios show that in D.C., the Fourth and
Eleventh circuits, offenders were actually as likely to receive a substantial
assistance motion as in the Eighth Circuit. Although the Second Circuit’s
percentage of substantial assistance departures was lower than the Eighth
Circuit’s, after adjusting for offender and offense characteristics, offenders
in the Second Circuit were 1.4 times more likely to be granted a
substantial assistance departure than offenders in the Eighth Circuit. In
another example, the First Circuit appears to grant more other downward
departures (10 percent) than the Eighth (8 percent), but the adjusted odds
ratios imply that offenders in the First Circuit are actually 22 percent less
likely to be granted an other downward departure than similar offenders in
the Eighth Circuit.

After adjusting for differences in drug offenses and offender
characteristics, the likelihood of an offender receiving a lower sentence
due to either a prosecutor’s substantial assistance motion or for other
reasons varied substantially across the 12 U.S. circuits and the 94 U.S.
district courts. For example, drug offenders sentenced in the Third Circuit
from fiscal years 1999-2001 were over 3 times more likely to receive a
substantial assistance departure at a prosecutor’s initiative than drug


Page 20                                       GAO-04-105 Federal Drug Sentences
                         offenders sentenced in the First Circuit during that same time period. The
                         likelihood a drug offender would be granted an other downward departure
                         also varied substantially. Adjusting for differences in offender and offense
                         characteristics, drug offenders sentenced in the Ninth Circuit from fiscal
                         years 1999-2001 were over 18 times more likely to have received an other
                         downward departure than similar drug offenders sentenced in the Fourth
                         Circuit during that same time period.

                         The likelihood of courts to impose a sentence that fell below a mandatory
                         minimum due to substantial assistance or other reasons also varied
                         substantially across the 12 U.S. circuits and the 94 U.S. district courts,
                         even after taking into account offense and offender characteristics for
                         drug offenses. See appendix III for more details about the statistical
                         likelihood of drug sentences departing downward or falling below a
                         mandatory minimum and the variation in those likelihoods across all
                         circuits and districts.

                         Our analysis shows variation—in some cases substantial differences—
                         among circuits and districts in the likelihood that offenders convicted of
                         drug offenses would receive substantial assistance or other downward
                         departures in fiscal years 1999-2001. However, these differences, in and of
                         themselves, may not indicate unwarranted sentencing departures or
                         misapplication of the sentencing guidelines. Empirical data on all factors
                         that could influence sentencing were not available, and so an analysis that
                         could fully explain why sentences varied was not possible.


                         USSC data were generally sufficient for our analyses of downward
Opportunities Exist to   departures and mandatory minimum sentences across circuits and for
Improve Sentencing       most districts. USSC’s sentencing data are based on information from five
                         documents usually produced for each case during the sentencing process.
Data Collection and      USSC requires that district courts send them these documents for each
Reporting                sentence imposed but principally relies on three of them—the Judgment
                         and Commitment Order (J&C), Statement of Reasons (SOR), and
                         Presentence Report (PSR)—to identify the length of sentences imposed,
                         departures, and the reasons for departures. Nationally for drug cases,
                         USSC received 96 percent or more of each of these documents from the
                         district courts. The percentage of documents missing varied by circuit and
                         districts within circuits. For example, among the circuits the percentage of
                         missing SORs ranged from less than 1 percent to more than 7 percent.
                         Among districts within the Ninth Circuit, the percentage of missing SORs
                         ranged from less than 1 percent to more than 58 percent. Although USSC
                         received most of the requested documents, some were missing key


                         Page 21                                     GAO-04-105 Federal Drug Sentences
information or contained unclear information that was difficult to
interpret. For instance, among the 12 circuits, departure data were missing
for 1 percent to 7 percent of all drug sentences imposed in fiscal years
1999-2001. See appendix IV for more detailed information.

In districts where the missing documents or information are concentrated
analysis of departures could be affected. Missing or unclear data also
limited our ability to determine when the safety valve was used as the
basis for sentencing below a mandatory minimum. For example, in our
preliminary analysis, we found that of the 11,256 federal drug sentences
for which the offense of conviction carried a mandatory minimum and fell
below that minimum, about 1,600 (14 percent) were coded by USSC as
falling below the applicable mandatory minimum but not involving either
the safety valve or substantial assistance. We discussed this issue with
USSC. After reviewing the underlying documents used for coding these
1,600 sentences, USSC determined that over 900 sentences were miscoded.
These miscoded sentences were recoded in a variety of ways, including
some coded as involving the safety valve, some coded as involving
substantial assistance, some coded as having a changed drug quantity that
affected the applicable mandatory minimum, and some coded as missing
safety valve information. USSC did not recode 681 sentences; these
sentences remained coded as falling below a mandatory minimum but
involving neither the safety valve nor substantial assistance. In addition,
safety valve information was determined to be missing from 770 sentences
for which the offense of conviction carried and fell below a mandatory
minimum.

AOUSC and USSC officials offered several explanations for missing
documents and information or unclear information on documents that was
difficult to interpret and code consistently. AOUSC officials noted that
judges may not submit documents due to security concerns in cases where
the record has been sealed or the offender placed in the witness
protection program. Processing a high volume of drug cases could
potentially affect document submission, they also noted. Of the four
circuits with the highest volume of drug cases, two—the Fourth and the
Ninth—also had the highest percentage of missing SORs, 7.4 percent and
6.6 percent, respectively. Although AOUSC developed a standard SOR
form for judges to use, USSC officials said that judges submit information
to USSC using a variety of forms and formats. In USSC’s view, this may
contribute to missing information on documents (e.g., forms that do not
prompt for an applicable mandatory minimum) or unclear information on
the forms that is difficult to interpret.



Page 22                                     GAO-04-105 Federal Drug Sentences
In addition to these explanations, USSC and AOUSC officials said no
information had been provided to judges and other court officials on how
sentencing documents are used by USSC to create its database or how to
clearly and completely prepare forms such as the SOR to meet USSC’s
data collection needs. USSC relies almost exclusively on the SOR to
determine whether the sentence imposed departed from the guidelines
range, met a mandatory minimum, or involved substantial assistance.
Thus, missing, incomplete, or difficult to interpret information on that
form can affect the completeness and accuracy of the data in USSC’s
database.

USSC has taken steps to reduce the number of missing documents and
information, but opportunities for improvements exist. For instance, USSC
sends an annual letter to the courts identifying those cases in which there
appear to be missing documents. However, USSC officials said they do not
inform courts of documents that, while received by USSC, contained
missing or unclear information. In addition, USSC collaborates with the
AOUSC and the Federal Judicial Center, the judiciary’s research and
education body, to educate judges and court officials on how to apply the
sentencing guidelines, but they do not offer programs or workshops on
how to complete forms such as the SOR and other documents used by
USSC.

Although the AOUSC has also taken steps to improve the quality of
sentencing data captured on the SOR, opportunities for improvements
remain. At its September 2003 meeting, the Judicial Conference of the
United States, the federal judiciary’s principal policymaking body,
approved a new standard SOR form. The Conference designated the new
form as the mechanism by which courts comply with the requirements of
the PROTECT Act to report reasons for sentences to USSC. The form was
revised in part because AOUSC officials and the Chair of the Judicial
Conference’s Committee on Criminal Law stated that the previous SOR
provided an imprecise measure of judicial discretion. It did not collect
information on other downward departures that are initiated by the
prosecution. The form was revised in consultation with USSC to better
meet its data collection needs. However, a USSC official said that the new
SOR does not specifically prompt for information on the application of the
safety valve or whether the offense of conviction carried a mandatory
minimum. In addition, judges will not be required to use this form
although USSC believes that the most effective step to improving the
completeness of the data the district courts report is for all courts to use a
single, standard SOR. AOUSC officials said that while the Judicial
Conference has endorsed the new form, they do not believe that the


Page 23                                       GAO-04-105 Federal Drug Sentences
                       Conference has the authority to require judges to use the new SOR.
                       However, AOUSC officials stated that with additional education they
                       believe judges will see the benefits of the new form and routinely use it.


                       The judiciary provided and USSC collected and interpreted sentencing
Conclusions            information for the vast majority of the 72,283 drug sentences imposed
                       during fiscal years 1999-2001. The small percentage of documents and
                       sentencing information for drug cases that were lacking in USSC’s
                       database did not affect the validity of our analyses at the national or
                       circuit level or for the vast majority of districts. However, the missing data
                       could limit analyses of sentencing practices in the few districts where
                       missing data are most prevalent. Reducing missing, incomplete, or difficult
                       to interpret information would improve USSC’s data on departures and
                       reasons sentences fell below an applicable mandatory minimum. Unless
                       the judiciary’s standard SOR is revised, judges are made aware of how to
                       effectively complete the SOR, and data submitted more consistently to
                       USSC by the courts, these data problems are likely to persist. More could
                       be done to help reduce the number of documents that are missing,
                       incomplete, or too difficult for USSC to interpret. Evaluating how USSC
                       interprets sentencing data was beyond the scope of this work. However,
                       we believe that without changes to the way USSC reports other downward
                       departures, that is, distinguishing, rather than combining other downward
                       departures initiated by the government with those initiated by judges, the
                       benefits of improved data collection of sentencing practices may not be
                       fully realized.



                       As USSC and the AOUSC work together to collect and record information
Recommendations        on federal sentences and provide additional education and information to
                       judges, we recommend that both USSC and AOUSC continue to
                       collaborate to

                  •	   develop educational programs and information for judges and other
                       officers of the court to encourage the use of AOUSC’s standard SOR and
                       more effective ways to complete the SOR and

                  •    revise the standard SOR to better meet the data collection needs of USSC.

                       We also recommend, resources permitting, that USSC, in addition to
                       notifying courts of missing sentencing documents, notify the Chief Judge
                       of each district of documents for drug cases that were received but


                       Page 24                                      GAO-04-105 Federal Drug Sentences
                          contained information that was unclear, incomplete, or difficult to
                          interpret.


                          We requested comments on a draft of this report from USSC, the AOUSC,
Agency Comments           the Judicial Conference Committee on Criminal Law, and the Department
                          of Justice (DOJ). We received written comments on October 10, 2003, from
                          USSC and the Judicial Conference Committee on Criminal Law. Both
                          generally agreed with our report and our recommendations, although the
                          Criminal Law Committee was concerned that the variation among districts
                          we found in the likelihood of other downward departures could
                          mistakenly be attributed to judicial discretion. Their official comments are
                          reproduced in Appendix V. We received oral technical comments from
                          USSC and written technical comments from DOJ and the AOUSC that we
                          incorporated where appropriate. DOJ, the Committee on Criminal Law,
                          and USSC all noted that “fast-track” sentences—prosecutor-initiated
                          programs to encourage early case disposition and reduce the burden on
                          the courts—could account for some of the variation we found among
                          districts in other downward departures. We have added new tables in
                          appendix IV that show the reasons reported to USSC for other downward
                          departures and the frequency with which each reason was cited.


USSC 	                    USSC generally agreed with our report and our recommendations. USSC
                          stated that it is already working to develop more detailed sentencing
                          documentation, submission procedures, and educational outreach to
                          courts and court personnel. USSC noted that while our recommendations
                          are helpful and consistent with their own thinking, implementation of such
                          measures may exceed their current resources given the increasing volume
                          of sentences to be processed and more detailed information for each
                          sentence required by the PROTECT Act.


The Judicial Conference   The Judicial Conference Committee on Criminal Law generally agreed
Committee on Criminal     with our report and our recommendations. The Committee noted that it
Law                       has taken significant steps to help USSC improve its data collection by
                          revising the standard Statement of Reasons form and endorsing the
                          standard form as the way to comply with PROTECT Act requirements.

                          The Committee commented that our report did not address the extent to
                          which judges themselves, absent a prosecutor’s request, have imposed
                          sentences that fall below the sentencing guideline range. Further, the
                          Committee noted that our report did not sufficiently distinguish downward


                          Page 25                                     GAO-04-105 Federal Drug Sentences
                           departures that are due to judicial discretion from those that are due to
                           prosecutorial discretion. As a result, according to the Committee, the
                           category “other downward departures” invites confusion, and some may
                           mistakenly attribute all such departures to judges. We state in our report
                           on page 11 that other downward departures are attributable to
                           prosecutors as well as judges. Additionally, data are not recorded, coded,
                           or reported in ways that clearly delineate other downward departures due
                           to judicial discretion from those due to prosecutorial discretion.


Impact of Fast Track       In addition, DOJ, USSC, and the Committee on Criminal Law stated that
Sentences on Analysis of   our report did not sufficiently discuss the impact of early disposition or
Other Downward             “fast track” programs on rates of other downward departures in those
                           circuits and districts where such programs were in place. Fast-track
Departures                 programs in the southwest border districts provide lower sentences
                           initiated by prosecutors for low-level drug trafficking offenses. DOJ noted
                           that these programs were developed in response to a dramatic rise in
                           immigration cases handled by federal prosecutors in districts along the
                           southwestern border and were designed to enhance public safety and
                           minimize the burden on the court system by processing these cases as
                           quickly as possible. All of the agencies took the position that some circuits
                           and districts departed downward more than others due to the greater
                           prevalence in some circuits and districts of cases involving fast track
                           programs.

                           It may ultimately be useful to distinguish fast track departures from other
                           downward departures, in the same way that we have distinguished
                           substantial assistance departures from other downward departures.
                           However, as currently coded in USSC database, fast track cases can be
                           identified only when a judge explicitly lists fast track as a reason for a
                           downward departure. Sentences citing fast track as a reason for departing
                           downward occurred almost entirely in one district--the Southern District
                           of California in which 2,171 sentences (58 percent of other downward
                           departures imposed in this district) were recorded by USSC as departing
                           due to the government’s fast track program. In all of the remaining 93
                           districts combined, only 9 sentences were recorded as departing
                           downward due to fast track programs. Moreover, when we eliminate from
                           our analyses those other downward departures that list "fast track" as a
                           reason for departing, we obtain very similar results to those published in
                           our report; that is, a greater likelihood of other downward departures
                           occurring in the Southern District of California than in most other
                           districts. We do not include these results in detail in our report because of
                           our concern that fast track cases are not always reported by judges as


                           Page 26                                      GAO-04-105 Federal Drug Sentences
such or coded by USSC in their database. If fast track departures are to be
distinguished from other departures, then changes will need to be made in
how such cases are currently reported to USSC. USSC is completing a
report on departures, pursuant to a Congressional directive in the
PROTECT Act, and will address the impact of fast track programs on
departures in greater detail.


As agreed with your offices, unless you publicly announce its contents 

earlier, we plan no further distribution of this report until 2 days from the 

date of this report. At that time, we will send copies of this report to the 

AOUSC and Judicial Conference; DOJ; USSC; and the Federal Judicial 

Center. We will also make copies available to others upon request. In 

addition, the report will be available at no charge on GAO’s Web site at 

http://www.gao.gov. 


If you or your staffs have any questions about this report, please contact 

David Alexander at (202) 512-8777 or at Alexanderd@gao.gov or me at 

(202) 512-8777 or at jenkinswo@gao.gov. Major contributors to this report 

are listed in appendix V.





William O. Jenkins, Jr. 

Director, Homeland Security and Justice Issues 





Page 27                                       GAO-04-105 Federal Drug Sentences
Appendix I: Objectives, Scope, and
Methodology

                    Our objectives were to review and categorize all sentences imposed under
Objectives 	        the federal sentencing guidelines by federal district judges in fiscal years
                    1999 through 2001. Specifically, our objectives were to

               •	   identify the percentage of federal sentences, and specifically, those for
                    drug-related offenses, departing downward from the applicable guidelines
                    range as determined by the court due to substantial assistance motions or
                    other reasons;

               •	   identify the percentage of federal drug sentences that fell below an
                    applicable mandatory minimum due to substantial assistance motions or
                    other reasons;

               •	   compare the likelihood across judicial circuits and districts that offenders
                    received downward departing sentences or sentences below a mandatory
                    minimum;

               •	   identify limitations, if any, of the U.S. Sentencing Commission’s (USSC)
                    sentencing data for drug offenses.


                    To meet these objectives, we obtained USSC sentencing data for fiscal
Scope 	             years 1999 through 2001. During fiscal years 1999 through 2001, federal
                    judges imposed sentences on 175,245 criminal offenders. Of this total,
                    11,584 sentences (6.6 percent) lacked information on whether there was a
                    departure from the guidelines range, and for 1,046 sentences (0.6 percent)
                    the guidelines were not applicable. An additional 167 sentences
                    (0.1 percent) lacked information on the type of offender sentenced (drug
                    versus non-drug), and 358 sentences (0.2 percent) lacked information on
                    both departure status and type of offender. For the remaining 162,090
                    sentences (92.5 percent), table 2 shows the numbers and percents of
                    departure and non-departure sentences for drug and non-drug sentences.




                    Page 28                                      GAO-04-105 Federal Drug Sentences
                                                 Appendix I: Objectives, Scope, and
                                                 Methodology




Table 2: Numbers and Percents of Drug Cases Involving Different Types of Offenses or Offenders, and Percentages of Each
Type Receiving Sentences Departing Downward from the Guidelines

                                                                          Departure status
                                                                                 Substantial         Other
                                       Upward                     No             assistance      downward
 Type of sentence                    departure              departure             departure       departure                Total
 Non-Drug                                 837                   65,251                10,140         16,583               92,811
                                         0.9%                   70.3%                 10.9%          17.9%
 Drug                                     143                   39,138                19,107         10,891               69,279
                                         0.2%                   56.5%                 27.6%          15.7%
 Total                                    980                  104,389                29,247         27,474             162,090
                                         0.6%                   64.4%                 18.0%          16.9%
Source: GAO analysis of USSC data.



                                                 Of the total of 175,245 offenders sentenced, 72,283 offenders (41 percent)
                                                 were convicted of drug offenses, and of those, 69,279 offenders had
                                                 complete information on departure status. Roughly 11 percent of the non-
                                                 drug offenders and 28 percent of the drug offenders received sentences
                                                 below the guidelines range due to substantial assistance, while 18 percent
                                                 of the non-drug offenders and 16 percent of the drug offenders received
                                                 sentences that departed downward for other reasons. Of the 69,279 drug
                                                 sentences that had valid information for USSC’s departure variable, 42,145
                                                 sentences (61 percent) carried a mandatory minimum. Our analyses of
                                                 mandatory minimum sentences excluded 284 of these sentences
                                                 (0.6 percent of all mandatory minimum sentences) that lacked the valid
                                                 sentence length information necessary to determine whether the sentence
                                                 fell below the minimum.


                                                 We had extensive discussions with knowledgeable USSC staff about the
Methodology 	                                    definitions and use of the data elements in our analysis. USSC takes many
                                                 steps to ensure the reliability and completeness of the data it receives
                                                 from districts. We did not independently validate the data in USSC’s
                                                 database; however, we did assess the quality of USSC data in our analysis
                                                 by testing and crosschecking selected data elements for internal
                                                 consistency. We discussed any anomalies we found from these tests with
                                                 knowledgeable USSC staff. On the basis of our tests and discussions with
                                                 USSC officials, we determined that the data were sufficiently accurate for
                                                 our reporting objectives.




                                                 Page 29                                       GAO-04-105 Federal Drug Sentences
Appendix I: Objectives, Scope, and
Methodology




We defined sentences that fell above or below an applicable guideline
range in accordance with USSC’s definition of “departures”—sentences
imposed that fall outside the sentencing guidelines range established by
the court. In USSC’s database sentences are coded into five categories: no
departure, upward departure, downward departure, substantial assistance,
and inapplicable. We distinguished sentences coded as “substantial
assistance” as those that fell below sentencing guidelines due to
“substantial assistance” or prosecutorial discretion. For sentences that fell
below the guideline ranges for reasons other than substantial assistance,
generally attributed to judicial discretion, we used those sentences coded
as “downward departures.” See appendix IV for a description of other
reasons, which include the government’s early disposition or “fast track”
programs, cited by judges for downward departures. Sentences for which
departure information was not available or coded “inapplicable” were
deleted from our analysis.

We defined sentences that fell below an applicable mandatory minimum
using USSC’s recorded information for sentence length. For convictions
where a mandatory minimum was recorded, those sentences with
recorded lengths that fell below the length of time stipulated by the
mandatory minimum were defined as “falling below the mandatory
minimum.” We identified 41,861 drug sentences that carried a mandatory
minimum and had valid sentence length data. Of those sentences we
designated as falling below an applicable mandatory minimum, we
identified those sentences that involved a substantial assistance motion
and those that fell below the mandatory minimum for other reasons, such
as the safety valve. If a sentence fell below and involved a substantial
assistance motion, we interpreted that sentence as a “substantial
assistance sentence” that fell below a mandatory minimum due to
prosecutorial discretion. If a sentence otherwise fell below, we interpreted
it as falling below for “other reasons.” Most of these sentences (9,384 or 87
percent of them) involved offenders that qualified for the safety valve
provision allowing judges to grant sentences below the mandatory
minimum. The data do not indicate that all of these sentences involve the
safety valve, which may be the result of coding errors or insufficient
available data.

We also reviewed the types of documents USSC staff used to identify
departures, the reasons for those departures, and the potential effect of
missing or unclear documentation on the interpretation of the departure
data in USSC’s database by district. We also interviewed officials at USSC
and the Administrative Office of the U.S. Courts (AOUSC), and the Chair
of the Judicial Conference Committee on Criminal Law.


Page 30                                      GAO-04-105 Federal Drug Sentences
                        Appendix I: Objectives, Scope, and
                        Methodology




Analyzing Numbers and   We analyzed sentencing data using both descriptive statistics and
Percents                multivariate analytic methods. For fiscal years 1999-2001, we used USSC’s
                        data to identify for each circuit and district the total number and percent
                        of sentences that fell above or within an applicable guideline range and
                        below a guideline range for substantial assistance or for other reasons. We
                        also identified all sentences that fell below an applicable mandatory
                        minimum due to substantial assistance or for other reasons for each
                        circuit and district. We provide these numbers and percentages in
                        appendix II.

                        The simple differences in the percentage of drug sentences that fall below
                        the guidelines range or below the mandatory minimum may not, without
                        some adjustment, provide an appropriate basis for making comparisons
                        across circuits and districts. Characteristics of the offenses and offenders
                        sentenced can vary from one circuit or district to the next, and these
                        differences may affect the number or percent of sentences that fall below
                        applicable guideline ranges or a mandatory minimum. Judges in some
                        circuits or districts, for example, may sentence a greater proportion of
                        offenders who possessed and shared information of the crime that assisted
                        the government in the investigation or prosecution of others or whose
                        offenses were less serious. Differences in these characteristics might
                        produce differences in sentences that have little to do with the exercise of
                        discretion. Therefore, the unadjusted differences in the percent of
                        sentences below the guidelines range or mandatory minimum might result
                        from judges sentencing different offenders, rather than from judges
                        sentencing offenders differently. Table 3 shows the offense and offender
                        characteristics we considered in the multivariate analyses we conducted
                        to adjust for such differences and re-estimate differences across circuits
                        and districts after taking them into account. It also provides the numbers
                        and percentages of all drug offenders or drug offenses that possessed each
                        of these characteristics.




                        Page 31                                     GAO-04-105 Federal Drug Sentences
                                        Appendix I: Objectives, Scope, and
                                        Methodology




Table 3: Numbers and Percents of Drug Cases Involving Different Types of Offenses or Offenders, and Percentages of Each
Type Receiving Sentences Departing Downward from the Guidelines

Offense/offender                         Number of all            Percent of all    Percent substantial        Percent other
characteristics                            drug cases               drug cases     assistance departure   downward departure
Type of drug offense
Drug trafficking                                  66,616                     96%                   28%                   16%
Drug: Communication facilities                     1,212                     2%                    20%                   12%
Drug: Simple possession                            1,451                     2%                     4%                     2%
Drug type
Cocaine                                           15,110                     22%                   31%                   10%
Crack                                             14,562                     22%                   33%                     8%
Heroine                                            5,101                     8%                    23%                   14%
Marijuana/Hashish                                 21,699                     32%                   18%                   28%
Other                                             11,208                     17%                   36%                   10%
Severity of offense score
Less than 17                                      14,700                     21%                   13%                   29%
17 to 22                                          13,822                     20%                   22%                   19%
23 to 28                                          18,453                     27%                   30%                   10%
Greater than 28                                   22,206                     32%                   38%                     9%
Weapon involved
No enhancement                                    58,779                     90%                   27%                   16%
Enhancement applied                                6,630                     10%                   35%                     8%
Mandatory minimum
No minimum involved                               27,133                     39%                   17%                   24%
Mandatory minimum involved                        42,145                     61%                   34%                   10%
Guilty plea
No guilty plea entered                             3,352                     5%                     2%                   10%
Guilty plea entered                               65,824                     95%                   29%                   16%
Safety valve provision
No safety valve applied                           45,788                     73%                   28%                   16%
Safety valve applied                              16,832                     27%                   30%                   16%
Education
Less than high school                             34,197                     51%                   23%                   18%
High school graduate                              21,502                     32%                   31%                   12%
Some college                                       9,819                     15%                   34%                   13%
College graduate                                   1,708                     3%                    31%                   15%




                                        Page 32                                             GAO-04-105 Federal Drug Sentences
                                     Appendix I: Objectives, Scope, and
                                     Methodology




 Offense/offender                     Number of all                Percent of all      Percent substantial               Percent other
 characteristics                        drug cases                   drug cases       assistance departure          downward departure
 Race
 White                                         17,405                         25%                          38%                          13%
 Black                                         20,355                         29%                          32%                            8%
 Hispanic                                      29,811                         43%                          18%                          23%
 Other                                          1,708                           2%                         32%                          13%
 Sex
 Male                                          59,801                         86%                          27%                          15%
 Female                                         9,467                         14%                          33%                          19%
 Citizenship
 U.S. citizen                                  46,928                         68%                          33%                          12%
 Non-Citizen                                   22,351                         32%                          17%                          24%
 Criminal history category
 1                                             38,798                         56%                          24%                          18%
 2                                              8,343                         12%                          31%                          12%
 3                                             10,010                         14%                          32%                          12%
 4                                              4,550                           7%                         32%                          13%
 5                                              2,185                           3%                         33%                          13%
 6                                              5,277                           8%                         35%                          15%
Source: GAO analysis of USSC data.

                                     Note: Severity Score is determined by the court. It ranges from 1 to 60 for all crimes, but the highest
                                     score for a drug crime is 46.


                                     Our primary focus in this report involved understanding how departure
                                     sentences vary across circuits and districts. Some of this variability across
                                     circuits and districts in the percentages of substantial assistance
                                     departures and other downward departures in the sentencing of drug
                                     offenders results from differences in the characteristics of offenses and
                                     offenders sentenced across circuits and districts. Moreover, the
                                     prosecution has sole authority to initiate a downward departure for
                                     substantial assistance, and all offenders are potentially eligible for such
                                     consideration. If an offender receives a substantial assistance departure,
                                     USSC codes the case as a substantial assistance departure and does not
                                     reflect any other downward departures that the judge may have granted in
                                     that particular case. Because of this coding convention, the percentage of
                                     other downward departures is partly a function of the percentage of
                                     downward departures for substantial assistance, which result from
                                     prosecutorial motions. To understand how these percentages are derived,
                                     it is useful to consider the following two hypothetical districts and the
                                     numbers of sentences of each type in each district shown in table 4.



                                     Page 33                                                      GAO-04-105 Federal Drug Sentences
                                       Appendix I: Objectives, Scope, and
                                       Methodology




Table 4: Hypothetical Example Showing Effect of Two Different Methods of Computing Percentages for “Other Downward
Departures”

                                        Sentences above               Substantial          Other
                                            and within a              assistance       downward
 District                                guideline range              departures       departures                Total
 Number of sentences imposed
 A                                                      40                    20               40                    100
 B                                                      20                    50               30                    100
 Other downward departures as
 percent of total sentences imposed
 A                                           40 (base 100)          20 (base 100)    40 (base 100)
 B                                           20 (base 100)          50 (base 100)    30 (base 100)
 Other downward departures as
 percent of total sentences less
 substantial assistance departures
 A                                           40 (base 100)          20 (base 100)     50 (base 80)
 B                                           20 (base 100)          50 (base 100)     60 (base 50)
Source: GAO example.


                                       The prosecution makes its selection for substantial assistance motions
                                       after screening the total universe of 100 offenders sentenced in each
                                       district. In our hypothetical example, the prosecutor offered and the court
                                       accepted substantial assistance motions for 20 percent of 100 offenders in
                                       district A and 50 percent of 100 offenders in district B—or 30 percent less
                                       in district A. Because USSC’s coding convention distinguishes substantial
                                       assistance cases from other downward departures, the universe of
                                       offenders who could be coded as receiving other downward departures is
                                       equal to the number of offenders who did not receive substantial
                                       assistance departures. In district A this would be 80 offenders (100 minus
                                       20 substantial assistance departures) and in district B it would be 50
                                       (100 minus 50 substantial assistance departures). Using this universe of
                                       offenders for our calculation, we would conclude that district A involves
                                       10 percent fewer other departures than district B (40/80=50 percent versus
                                       30/50=60 percent). While we offer percentages in some of the following
                                       tables that, following standard procedures, are based on the total number
                                       of offenders, we also use odds and odds ratios to describe the likelihoods
                                       of sentences departing. These odds and odds ratios have the advantage of
                                       utilizing the appropriate universe of offenders in making comparisons
                                       across circuits and districts.




                                       Page 34                                       GAO-04-105 Federal Drug Sentences
                            Appendix I: Objectives, Scope, and
                            Methodology




Estimating Departure        In order to make a fair comparison of sentencing patterns across circuits
Likelihoods                 and districts, we used logistic regression analysis to estimate the
                            likelihood that sentences would fall below an applicable guideline range or
                            a mandatory minimum, before and after adjusting for differences in
                            offender and offense characteristics across circuits and districts. Our
                            adjusted estimates of the differences in likelihoods across circuits and
                            districts involved controlling for the following offender and offense
                            characteristics:

                       •	   Offender: gender, race, education, citizenship, and criminal history
                            category score.

                       •	   Offense: type of drug involved; type and severity of offense; whether the
                            offense was eligible for mandatory minimum sentence; whether a gun was
                            involved in commission of the offense; whether the defendant was
                            convicted after trial or entered a guilty plea; and whether the safety valve
                            was applied.

                            Because they are somewhat more amenable to adjustment for offense and
                            offender characteristics, we use odds and odds ratios, rather than
                            percentages and percentage differences, to estimate the likelihood of
                            sentences falling below a guideline range and the variability in those
                            likelihoods across circuits and districts. We first calculated the odds on
                            substantial assistance falling below a guideline range among all sentences,
                            and then calculated the odds on other downward departures for those
                            sentences that did not involve departures for substantial assistance. In
                            both cases odds were compared across circuits and districts by taking
                            their ratios. In our simple two district example above, the odds on
                            substantial assistance departures in districts A and B would be 20/80=0.25
                            and 50/50=1.0, respectively, and the odds ratio of 1.0/0.25=4.0 indicates
                            that the likelihood of substantial assistance departures were 4 times as
                            great in district B as in district A. The odds on other downward
                            departures, excluding the substantial assistance departures, would be
                            40/40 =1.0 in district A and 30/20=1.5 in district B, and the ratio of
                            1.5/1.0=1.5 indicates that downward departures are 1.5 times as likely in
                            district B as in district A.

                            We conducted four regression analyses. First, we conducted two
                            regression analyses that estimated the likelihoods that drug sentences fell
                            below an applicable guideline range due to either prosecutors’ substantial
                            assistance motions or for other reasons before and after controlling for
                            offense and offender characteristics. Second, we conducted two
                            regression analyses that estimated the likelihoods that drug sentences that



                            Page 35                                      GAO-04-105 Federal Drug Sentences
              Appendix I: Objectives, Scope, and
              Methodology




              carried a mandatory minimum fell below an otherwise applicable
              mandatory minimum due to either substantial assistance or other reasons
              before and after controlling for offense or offender characteristics.


Limitations   Our work was limited to drug sentences imposed during fiscal years 1999-
              2001, and excluded drug cases in that year that lacked information on
              whether the case departed from the guidelines (4 percent of all drug
              cases). We also excluded cases for which there was insufficient
              information to indicate whether the sentence involved was below a
              mandatory minimum (0.7 percent of all mandatory minimum drug cases),
              and were unable to identify whether 7 percent of the cases that fell below
              the mandatory minimum, and did not involve substantial assistance,
              involved the use of the safety valve provision. Further, our ability to
              control for differences in the likelihood of sentences departing from the
              guidelines, or falling below a mandatory minimum, was also restricted to a
              reasonably small number of characteristics for which we had data and was
              affected by the amount of missing data on those characteristics. Empirical
              data on all factors that could influence sentencing were not available, and
              so an analysis that could fully explain why sentences varied was not
              possible.

              Our analyses were also limited to determining whether sentences fell
              below a guideline range or a mandatory minimum, and we did not
              investigate whether there were differences across circuits or districts in
              how far below a guideline range minimum or a mandatory minimum the
              sentences fell. Nationwide, the average (mean) minimum sentence length,
              under the guidelines, for drug sentences that departed downward for
              substantial assistance reasons was 108 months (or about 9 years). Those
              sentences were reduced as a result of the substantial assistance motion,
              on average, by 53 months, and the resulting sentence was, on average, 49
              percent of the average lowest sentence drug offenders otherwise would
              have received under the guidelines.1 The average minimum sentence
              length under the guidelines for drug sentences that departed downward
              for reasons other than substantial assistance was 60 months (or 5 years).
              Those sentences were reduced, on average, by 22 months, and the
              resulting sentence was, on average, 57 percent of the average lowest


              1
               The average percentage sentence reduction was calculated by taking the percentage
              reductions for all sentences and averaging them. This average does not necessarily equal
              the ratio of the average reduced sentence (as a result of a departure) to the average
              expected sentence (the guidelines minimum or mandatory minimum sentence length).




              Page 36                                              GAO-04-105 Federal Drug Sentences
Appendix I: Objectives, Scope, and
Methodology




sentence drug offenders otherwise would have received under the
guidelines.

Nearly all of the mandatory minimum drug sentences were for 5 years
(48 percent) or 10 years (49 percent). The 5-year mandatory minimum
sentences that were reduced for substantial assistance were reduced by an
average of 33 months, resulting in an average sentence that was 45 percent
of the mandatory minimum. The sentences lowered for other reasons,
(primarily the safety valve), that would otherwise be subject to a 5-year
mandatory minimum were reduced by an average of 26 months, resulting
in an average sentence that was 57 percent of the mandatory minimum.
The 10-year mandatory minimum sentences that were reduced for
substantial assistance were reduced by an average of 63 months, resulting
in an average sentence that was 47 percent of the mandatory minimum.
The sentences lowered for other reasons, (primarily the safety valve), that
would otherwise be subject to a 10-year mandatory minimum were
reduced for other reasons by an average of 52 months, resulting in an
average sentence that was 57 percent of the mandatory minimum.

We also did not attempt to determine, for those sentences that fell within
the guideline range, across circuits and districts whether sentences fell
more frequently at the lower or higher end of the guideline range.
However, overall, 72 percent of drug sentences that were within the
guidelines range and did not depart were at the bottom of the range.




Page 37                                     GAO-04-105 Federal Drug Sentences
Appendix II: Percentage of Sentences Falling
below an Applicable Guideline Range or An
Otherwise Applicable Mandatory Minimum
              This appendix provides information on the percent of federal drug
              sentences that fall below an applicable guideline range or an otherwise
              applicable mandatory minimum. We show in tables 5 and 6 the variability
              across circuits and districts in the percentages of drug sentences that were
              (1) above the guidelines range, (2) within the guidelines range, (3) below
              the range due to substantial assistance, and (4) below the range for other
              reasons. We then show in tables 7 and 8 the variability across circuits and
              districts in the percentages of mandatory minimum drug cases that
              resulted in sentences (1) at or above a mandatory minimum sentence,
              (2) below a mandatory minimum due to prosecutorial motions for
              substantial assistance, and (3) below the mandatory minimum for other
              reasons.

              Table 5 shows that the percentage of upward departures from the
              sentencing guidelines for drug cases in fiscal years 1999–2001 was similar
              and exceedingly small across all 12 circuits. However, the percentages of
              within range sentences and downward departures varied substantially
              across circuits. The percentage of all drug sentences that were within the
              guidelines range varied from 34 percent in the Ninth Circuit to 69 percent
              in the First and Fifth Circuits. The percentage of drug sentences that
              involved downward departures for substantial assistance varied from
              18 percent in the Ninth Circuit to 45 percent in the Third Circuit, and the
              percentage that resulted in downward departures for other reasons varied
              from 4 percent in the Fourth Circuit to 47 percent in the Ninth Circuit. The
              Ninth Circuit was the only circuit in which the percentage of departures
              for other reasons exceeded 20 percent and the only circuit in which
              departures for other reasons were more common than departures for
              substantial assistance.




              Page 38                                     GAO-04-105 Federal Drug Sentences
                                                  Appendix II: Percentage of Sentences Falling
                                                  below an Applicable Guideline Range or An
                                                  Otherwise Applicable Mandatory Minimum




Table 5: Percentages of Drug Cases between 1999 and 2001 Resulting in Upward Departures, Within Range Sentences, and
Downward Departures, by Circuit

                                                     Sentenced                  Substantial                     Other
                                       Upward             within                assistance                  downward          Total number
 Circuit                             departure   guideline range                 departure                   departure        of drug cases
 D.C.                                    0.3%                53%                        30%                        16%                  381
 First                                   0.3%                69%                        21%                        10%                 2,166
 Second                                  0.3%                48%                        32%                        20%                 5,166
 Third                                   0.2%                48%                        45%                            7%              2,750
 Fourth                                  0.2%                63%                        33%                            4%              6,302
 Fifth                                   0.1%                69%                        20%                        11%               15,102
 Sixth                                   0.1%                53%                        42%                            5%              5,067
 Seventh                                 0.3%                64%                        31%                            5%              3,017
 Eighth                                  0.2%                55%                        37%                            8%              5,255
 Ninth                                   0.3%                34%                        18%                        47%               12,116
 Tenth                                   0.2%                63%                        22%                        15%                 3,500
 Eleventh                                0.3%                64%                        30%                            5%              8,457
Source: GAO analysis of USSC data.

                                                  Note: 3,004 cases lacking information on departures were excluded.


                                                  Table 6 reveals that the percentages of sentences within the guidelines
                                                  range and the percentages of sentences departing downward from them
                                                  notably differed across the 94 districts, even in some cases among districts
                                                  within the same circuit.




                                                  Page 39                                                  GAO-04-105 Federal Drug Sentences
                                       Appendix II: Percentage of Sentences Falling
                                       below an Applicable Guideline Range or An
                                       Otherwise Applicable Mandatory Minimum




Table 6: Percentages of Drug Cases between 1999 and 2001 Resulting in Upward Departures, Within Range Sentences, and
Downward Departures, by District

                                                     Sentenced            Substantial              Other
                                    Upward                within          assistance           downward        Total number
District                          departure      guideline range           departure            departure      of drug cases
D.C. Circuit
District of Columbia                  0.3%                  53%                  30%                 16%                 381
First Circuit
Maine                                 0.0%                  44%                  52%                  3%                 153
Massachusetts                         0.6%                  51%                  30%                 19%                 656
New Hampshire                         0.5%                  49%                  43%                  8%                 199
Puerto Rico                           0.1%                  87%                       7%              5%               1,006
Rhode Island                          0.0%                  80%                       9%             11%                 152
Second Circuit
Connecticut                           0.8%                  44%                  24%                 31%                 264
New York Eastern                      0.3%                  45%                  24%                 32%               1,961
New York Northern                     0.2%                  24%                  68%                  8%                 586
New York Southern                     0.2%                  64%                  24%                 12%               1,642
New York Western                      0.6%                  42%                  52%                  5%                 508
Vermont                               0.0%                  43%                  37%                 21%                 208
Third Circuit
Delaware                              0.0%                  52%                  41%                  7%                  71
New Jersey                            0.4%                  60%                  32%                  8%                 847
Pennsylvania Eastern                  0.2%                  36%                  57%                  6%               1,028
Pennsylvania Middle                   0.0%                  38%                  56%                  6%                 392
Pennsylvania Western                  0.0%                  55%                  37%                  9%                 352
Virgin Islands                        0.0%                  75%                  17%                  8%                  60
Fourth Circuit
Maryland                              0.2%                  43%                  43%                 14%                 517
North Carolina Eastern                0.2%                  56%                  41%                  3%                 619
North Carolina Middle                 0.8%                  63%                  34%                  2%                 508
North Carolina Western                0.0%                  32%                  62%                  5%                 970
South Carolina                        0.1%                  60%                  38%                  2%                 988
Virginia Eastern                      0.3%                  89%                       8%              3%               1,360
Virginia Western                      0.2%                  56%                  42%                  2%                 567
West Virginia Northern                0.3%                  89%                       9%              2%                 339
West Virginia Southern                0.0%                  81%                  16%                  3%                 433




                                       Page 40                                             GAO-04-105 Federal Drug Sentences
                            Appendix II: Percentage of Sentences Falling
                            below an Applicable Guideline Range or An
                            Otherwise Applicable Mandatory Minimum




                                          Sentenced            Substantial              Other
                         Upward                within          assistance           downward        Total number
District               departure      guideline range           departure            departure      of drug cases
Fifth Circuit
Louisiana Eastern          0.0%                  74%                  19%                  6%                 587
Louisiana Middle           0.0%                  39%                  58%                  3%                  66
Louisiana Western          0.0%                  64%                  32%                  3%                 395
Mississippi Northern       0.0%                  42%                  49%                  8%                 245
Mississippi Southern       0.0%                  58%                  39%                  3%                 369
Texas Eastern              0.0%                  80%                  14%                  6%                 869
Texas Northern             0.0%                  65%                  31%                  4%                 960
Texas Southern             0.1%                  66%                  26%                  8%               4,863
Texas Western              0.1%                  72%                  12%                 16%               6,750
Sixth Circuit
Kentucky Eastern           0.2%                  57%                  40%                  2%                 866
Kentucky Western           0.0%                  81%                  16%                  3%                 296
Michigan Eastern           0.0%                  51%                  43%                  6%                 871
Michigan Western           0.3%                  49%                  44%                  6%                 335
Ohio Northern              0.3%                  47%                  44%                  9%                 729
Ohio Southern              0.0%                  38%                  54%                  7%                 506
Tennessee Eastern          0.1%                  57%                  41%                  2%                 742
Tennessee Middle           0.0%                  53%                  40%                  7%                 205
Tennessee Western          0.2%                  56%                  40%                  4%                 517
Seventh Circuit
Illinois Central           0.5%                  38%                  56%                  5%                 424
Illinois Northern          0.1%                  53%                  38%                  9%                 687
Illinois Southern          0.3%                  90%                       6%              4%                 722
Indiana Northern           0.2%                  71%                  25%                  4%                 455
Indiana Southern           0.0%                  39%                  58%                  3%                 296
Wisconsin Eastern          0.4%                  65%                  32%                  3%                 280
Wisconsin Western          1.3%                  79%                  17%                  3%                 153
Eighth Circuit
Arkansas Eastern           0.0%                  81%                  16%                  3%                 321
Arkansas Western           0.0%                  70%                  27%                  4%                 168
Iowa Northern              1.3%                  52%                  41%                  6%                 477
Iowa Southern              0.1%                  45%                  44%                 11%                 692
Minnesota                  0.2%                  54%                  31%                 15%                 590
Missouri Eastern           0.0%                  59%                  36%                  5%                 908
Missouri Western           0.1%                  37%                  59%                  3%                 914




                            Page 41                                             GAO-04-105 Federal Drug Sentences
                                Appendix II: Percentage of Sentences Falling
                                below an Applicable Guideline Range or An
                                Otherwise Applicable Mandatory Minimum




                                              Sentenced            Substantial              Other
                             Upward                within          assistance           downward        Total number
District                   departure      guideline range           departure            departure      of drug cases
Nebraska                       0.0%                  65%                  25%                 10%                 893
North Dakota                   0.0%                  53%                  38%                  8%                  86
South Dakota                   0.5%                  69%                  19%                 11%                 206
Ninth Circuit
Alaska                         0.0%                  69%                  19%                 11%                 201
Arizona                        0.6%                  28%                  13%                 58%               2,560
California Central             0.2%                  72%                  16%                 12%                 418
California Eastern             0.0%                  64%                  26%                 10%                 622
California Northern            1.5%                  60%                  15%                 23%                 406
California Southern            0.1%                  17%                  13%                 70%               5,312
Guam                           1.2%                  43%                  54%                  1%                  83
Hawaii                         0.4%                  58%                  32%                 10%                 524
Idaho                          0.0%                  33%                  62%                  5%                  97
Montana                        0.0%                  54%                  40%                  5%                 399
Nevada                         0.3%                  63%                  18%                 18%                 315
Northern Mariana Islands       0.0%                  29%                  71%                  0%                  17
Oregon                         0.3%                  55%                  33%                 12%                 366
Washington Eastern             0.0%                  62%                  14%                 24%                 249
Washington Western             0.2%                  52%                  33%                 15%                 544
Tenth Circuit
Colorado                       0.0%                  41%                  52%                  7%                 420
Kansas                         0.4%                  63%                  29%                  7%                 560
New Mexico                     0.1%                  66%                  13%                 21%               1,672
Oklahoma Eastern               1.4%                  54%                       5%             39%                  74
Oklahoma Northern              0.8%                  73%                  21%                  5%                 131
Oklahoma Western               0.9%                  74%                  22%                  3%                 229
Utah                           0.0%                  67%                  12%                 21%                 199
Wyoming                        0.0%                  59%                  34%                  7%                 217
Eleventh Circuit
Alabama Middle                 0.4%                  38%                  55%                  6%                 279
Alabama Northern               0.0%                  49%                  49%                  2%                 417
Alabama Southern               0.0%                  44%                  49%                  6%                 342
Florida Middle                 0.2%                  57%                  37%                  6%               2,007
Florida Northern               0.9%                  60%                  38%                  1%                 565
Florida Southern               0.1%                  78%                  16%                  6%               3,237
Georgia Middle                 1.1%                  55%                  39%                  5%                 558




                                Page 42                                             GAO-04-105 Federal Drug Sentences
                                          Appendix II: Percentage of Sentences Falling
                                          below an Applicable Guideline Range or An
                                          Otherwise Applicable Mandatory Minimum




                                                        Sentenced               Substantial                 Other
                                       Upward                within             assistance              downward       Total number
 District                            departure      guideline range              departure               departure     of drug cases
 Georgia Northern                        0.3%                    60%                    30%                    10%               756
 Georgia Southern                        0.0%                    63%                    33%                    4%                293
Source: GAO analysis of USSC data.

                                          Note: 3,004 cases lacking information on departures were excluded.


                                          There were 6 districts in which the percentage of sentences departing
                                          upward from the guidelines exceeded 1 percent of all cases—Wisconsin
                                          Western (1.3 percent), Iowa Northern (1.3 percent), California Northern
                                          (1.5 percent), Guam (1.2 percent), Oklahoma Eastern (1.4 percent), and
                                          Georgia Middle (1.1). The percentage of sentences within the guidelines
                                          range varied substantially, from 17 percent in the California Southern
                                          District to 90 percent in the Illinois Southern District. Fewer than 10
                                          percent of the sentences departed downward for substantial assistance in
                                          Puerto Rico (7 percent), Rhode Island (9 percent), Virginia Eastern (8
                                          percent), West Virginia Northern (9 percent), Illinois Southern (6 percent),
                                          and Oklahoma Eastern (5 percent). At the same time, the percentage of
                                          cases departing downward for substantial assistance exceeded 50 percent
                                          in 16 districts, and was highest in the North Mariana Islands (71 percent),
                                          New York Northern (68 percent), North Carolina Western (62 percent),
                                          and Idaho (62 percent) Districts. Sentences departing downward for other
                                          reasons represented only 3 percent or less of all sentences in 24 districts
                                          but over 20 percent of the sentences in 10 districts; these other downward
                                          departures were especially common in New York Eastern (32 percent),
                                          Oklahoma Eastern (39 percent), Arizona (58 percent), and California
                                          Southern (70 percent) Districts. While the percentages of other downward
                                          departures were fairly similar and involved 10 percent or fewer of all cases
                                          in the various districts in the Sixth and Seventh Circuits, the range in the
                                          percentage of other downward departures were sizable across the districts
                                          in the Second Circuit (5 percent to 32 percent), Ninth Circuit (none to
                                          70 percent), and Tenth Circuit (3 to 39 percent).

                                          Table 7 shows the differences across circuits in the percentages of
                                          mandatory minimum drug sentences between 1999 and 2001 that were at
                                          or above an applicable mandatory minimum, below an otherwise
                                          applicable mandatory minimum due to substantial assistance, and below
                                          an otherwise applicable mandatory minimum for other reasons. The
                                          percentage of mandatory minimum sentences that were at or above an
                                          applicable mandatory minimum sentence ranged from 35 percent in the
                                          Ninth Circuit to 64 percent in the Fourth Circuit. The percentage of
                                          sentences that fell below an otherwise applicable mandatory minimum


                                          Page 43                                                  GAO-04-105 Federal Drug Sentences
Appendix II: Percentage of Sentences Falling
below an Applicable Guideline Range or An
Otherwise Applicable Mandatory Minimum




due to substantial assistance motions ranged from 19 percent in the First
Circuit to 40 percent in the Third Circuit. The percentage of mandatory
minimum sentences that fell below an otherwise applicable mandatory
minimum sentence for other reasons ranged from 12 percent in the Fourth
Circuit to 38 percent in the Ninth Circuit.

Table 7: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001
Resulting in Sentences at or above a Minimum, and below An Otherwise Applicable
Minimum Due to Substantial Assistance or for Other Reasons, by Circuit

                            At or       Below a                Below a        Total number of
                         above a minimum due to               minimum              mandatory
                       mandatory     substantial              for other              minimum
 Circuit                minimum       assistance               reasons             drug cases
 D.C.                            54%           30%                  17%                     236
 First                           51%           19%                  30%                   1,444
 Second                          37%           34%                  29%                   2,835
 Third                           37%           40%                  22%                   1,927
 Fourth                          64%           25%                  12%                   4,633
 Fifth                           46%           20%                  34%                   7,161
 Sixth                           49%           39%                  13%                   3,201
 Seventh                         59%           24%                  17%                   2,279
 Eighth                          53%           31%                  16%                   4,062
 Ninth                           35%           27%                  38%                   5,381
 Tenth                           44%           22%                  34%                   2,065
 Eleventh                        47%           23%                  29%                   6,637
Source: GAO analysis of USSC data.

Note: 41,861 sentences carried a mandatory minimum and had complete sentence length
information; 284 sentences with a mandatory minimum lacked complete sentence length information.


Table 8 provides these same percentages, classified by districts rather than
circuits, and shows that variability in the sentencing of mandatory
minimum offenders is considerable across the 94 districts. The percentage
of sentences falling below an otherwise applicable mandatory minimum
for substantial assistance reasons was very different across districts,
ranging from less than 10 percent of all mandatory minimum sentences in
7 districts to over 50 percent in 9 districts. The percentage of sentences
falling below an otherwise applicable mandatory minimum for other
reasons also varied greatly across districts, from less than 10 percent of all
mandatory minimum sentences in 11 districts to 50 percent or more in
3 districts.




Page 44                                                 GAO-04-105 Federal Drug Sentences
                                       Appendix II: Percentage of Sentences Falling
                                       below an Applicable Guideline Range or An
                                       Otherwise Applicable Mandatory Minimum




Table 8: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001 Resulting in Sentences at or above the
Minimum, and below An Otherwise Applicable Minimum Due to Substantial Assistance or For Other Reasons, by District

                                     At or above        Below a minimum                     Below a      Total number of 

                                    a mandatory         due to substantial             minimum for    mandatory minimum 

District                               minimum                 assistance             other reasons           drug cases 

D.C. Circuit
District of Columbia                        54%                        30%                     17%                     236
First Circuit
Maine                                       31%                        52%                     17%                      75
Massachusetts                               43%                        33%                     23%                     433
New Hampshire                               37%                        42%                     21%                      86
Puerto Rico                                 58%                         6%                     36%                     762
Rhode Island                                58%                         7%                     35%                      88
Second Circuit
Connecticut                                 52%                        22%                     27%                     198
New York Eastern                            34%                        30%                     36%                     787
New York Northern                           17%                        70%                     13%                     353
New York Southern                           43%                        25%                     33%                   1,230
New York Western                            40%                        46%                     14%                     211
Vermont                                     31%                        54%                     15%                      59
Third Circuit
Delaware                                    53%                        36%                     11%                      36
New Jersey                                  31%                        30%                     39%                     577
Pennsylvania Eastern                        32%                        52%                     16%                     828
Pennsylvania Middle                         53%                        37%                     11%                     200
Pennsylvania Western                        52%                        31%                     17%                     263
Virgin Islands                              52%                        30%                     17%                      23
Fourth Circuit
Maryland                                    61%                        28%                     10%                     443
North Carolina Eastern                      70%                        23%                      7%                     505
North Carolina Middle                       70%                        21%                      9%                     458
North Carolina Western                      50%                        41%                      9%                     822
South Carolina                              61%                        28%                     11%                     685
Virginia Eastern                            76%                         7%                     17%                     996
Virginia Western                            49%                        39%                     12%                     456
West Virginia Northern                      82%                         7%                     12%                      92
West Virginia Southern                      70%                        12%                     18%                     174




                                       Page 45                                           GAO-04-105 Federal Drug Sentences
                          Appendix II: Percentage of Sentences Falling
                          below an Applicable Guideline Range or An
                          Otherwise Applicable Mandatory Minimum




                        At or above        Below a minimum                     Below a      Total number of 

                       a mandatory         due to substantial             minimum for    mandatory minimum 

District                  minimum                 assistance             other reasons           drug cases 

Fifth Circuit
Louisiana Eastern              55%                        17%                     29%                     423
Louisiana Middle               50%                        40%                     10%                      42
Louisiana Western              83%                        12%                      5%                     283
Mississippi Northern           61%                        27%                     12%                     140
Mississippi Southern           50%                        32%                     18%                     257
Texas Eastern                  71%                        11%                     18%                     543
Texas Northern                 57%                        25%                     18%                     647
Texas Southern                 40%                        21%                     39%                   2,702
Texas Western                  36%                        18%                     46%                   2,124
Sixth Circuit
Kentucky Eastern               32%                        52%                     15%                     402
Kentucky Western               71%                        14%                     15%                     185
Michigan Eastern               46%                        40%                     14%                     558
Michigan Western               57%                        32%                     11%                     234
Ohio Northern                  45%                        42%                     13%                     522
Ohio Southern                  44%                        47%                      9%                     326
Tennessee Eastern              52%                        35%                     13%                     472
Tennessee Middle               49%                        40%                     12%                     136
Tennessee Western              59%                        31%                     10%                     367
Seventh Circuit
Illinois Central               60%                        35%                      5%                     304
Illinois Northern              44%                        31%                     26%                     570
Illinois Southern              79%                         4%                     17%                     547
Indiana Northern               60%                        22%                     18%                     274
Indiana Southern               43%                        45%                     12%                     272
Wisconsin Eastern              60%                        23%                     17%                     217
Wisconsin Western              79%                         9%                     12%                      95
Eighth Circuit
Arkansas Eastern               68%                        15%                     17%                     207
Arkansas Western               63%                        18%                     18%                     119
Iowa Northern                  64%                        26%                     10%                     388
Iowa Southern                  54%                        30%                     16%                     629
Minnesota                      49%                        27%                     24%                     472
Missouri Eastern               53%                        33%                     15%                     663
Missouri Western               38%                        53%                      9%                     654




                          Page 46                                           GAO-04-105 Federal Drug Sentences
                              Appendix II: Percentage of Sentences Falling
                              below an Applicable Guideline Range or An
                              Otherwise Applicable Mandatory Minimum




                            At or above        Below a minimum                     Below a      Total number of
                           a mandatory         due to substantial             minimum for    mandatory minimum
District                      minimum                 assistance             other reasons           drug cases
Nebraska                           57%                        22%                     21%                     771
North Dakota                       44%                        45%                     11%                      55
South Dakota                       63%                        23%                     14%                     103
Ninth Circuit
Alaska                             59%                        19%                     22%                     130
Arizona                            18%                        20%                     62%                   1,157
California Central                 52%                        14%                     34%                     325
California Eastern                 57%                        23%                     20%                     401
California Northern                54%                        16%                     31%                     274
California Southern                19%                        34%                     47%                   1,357
Guam                               28%                        52%                     19%                      67
Hawaii                             44%                        33%                     23%                     415
Idaho                              54%                        37%                      8%                      59
Montana                            50%                        40%                     10%                     219
Nevada                             51%                        18%                     30%                     212
Northern Mariana Islands           22%                        67%                     11%                       9
Oregon                             50%                        27%                     22%                     246
Washington Eastern                 51%                        16%                     33%                     128
Washington Western                 41%                        35%                     24%                     381
Tenth Circuit
Colorado                           32%                        52%                     16%                     251
Kansas                             63%                        22%                     15%                     382
New Mexico                         29%                        16%                     55%                     874
Oklahoma Eastern                   57%                         7%                     37%                      46
Oklahoma Northern                  65%                        21%                     14%                      72
Oklahoma Western                   73%                        17%                     10%                     151
Utah                               41%                        16%                     43%                     107
Wyoming                            54%                        27%                     19%                     185




                              Page 47                                           GAO-04-105 Federal Drug Sentences
                                        Appendix II: Percentage of Sentences Falling
                                        below an Applicable Guideline Range or An
                                        Otherwise Applicable Mandatory Minimum




                                      At or above         Below a minimum                         Below a           Total number of 

                                     a mandatory          due to substantial                 minimum for         mandatory minimum 

 District                               minimum                  assistance                 other reasons                drug cases 

 Eleventh Circuit
 Alabama Middle                              43%                          48%                           9%                          193
 Alabama Northern                            52%                          37%                          11%                          301
 Alabama Southern                            49%                          41%                          10%                          267
 Florida Middle                              53%                          28%                          19%                        1,642
 Florida Northern                            59%                          33%                           8%                          477
 Florida Southern                            35%                          14%                          50%                        2,686
 Georgia Middle                              65%                          25%                          10%                          305
 Georgia Northern                            57%                          22%                          21%                          566
 Georgia Southern                            75%                          19%                           7%                          197
Source: GAO analysis of USSC data.

                                        Note: 41,861 sentences carried a mandatory minimum and had complete sentence length
                                        information; 284 sentences with a mandatory minimum lacked complete sentence length information.




                                        Page 48                                                 GAO-04-105 Federal Drug Sentences
Appendix III: Likelihood of Sentences Falling
below a Guideline Range or an Otherwise
Applicable Mandatory Minimum
               This appendix provides odds and odds ratios to describe the differences
               across circuits and districts in sentences falling below a guideline range or
               an otherwise applicable mandatory minimum for substantial assistance
               and other reasons, both before and after controlling for differences in
               offender and offense characteristics. In the left columns of tables 9 and 10,
               we show the odds on substantial assistance departures across circuits and
               districts and ratios indicating differences across circuits and districts,
               before and after we adjust for characteristics of offenses and offenders. In
               the right columns of tables 9 and 10, we show the odds on other
               downward departures across circuits and districts and ratios indicating
               differences between them, before and after we adjust for characteristics of
               offenses and offenders. In the comparisons across circuits, we used the
               Eighth Circuit as the reference category, so the odds ratios reflect how
               much more or less likely other circuits were than that circuit to depart in
               sentencing offenders. In comparisons across districts, the Minnesota
               District was used as the reference category. The offense and offender
               characteristics we controlled for were described earlier in appendix I. The
               ratios that estimate differences before and after adjusting for these
               characteristics were derived from logistic regression models. We focus on
               adjusted ratios in the following discussion, since they provide us with our
               best estimates of differences across circuits and districts after taking into
               account the differences in the drug cases handled across jurisdictions.

               Table 9 shows that both the odds on substantial assistance departures and
               other downward departures varied substantially across circuits. After
               adjusting for differences across circuits in offense and offender
               characteristics, the odds on substantial assistance departures were
               significantly greater in three circuits than the Eighth Circuit. In the Third
               Circuit, for example, substantial assistance departures were 2.2 times as
               likely as in the Eighth Circuit. Four circuits were not significantly different
               from the Eighth Circuit in terms of the likelihood of sentences departing
               for substantial assistance, and in the remaining 4 circuits substantial
               assistance departures were significantly less likely. In the First Circuit, for
               example, substantial assistance departures were less likely by a factor of
               0.64, or 36 percent less likely, than in the Eighth Circuit. The fact that
               some circuits are less likely than the Eighth Circuit while others are more
               likely than the Eighth Circuit to depart for substantial assistance implies
               that some differences between other circuits are larger than those
               explicitly indicated by these ratios. For example, these ratios imply that
               substantial assistance departures in the Third Circuit are 2.2/0.64=3.4
               times as likely as in the First Circuit.




               Page 49                                       GAO-04-105 Federal Drug Sentences
                                              Appendix III: Likelihood of Sentences Falling
                                              below a Guideline Range or an Otherwise
                                              Applicable Mandatory Minimum




Table 9: Odds on Substantial Assistance Departures and Other Downward Departures, and Odds Ratios Indicating the
Differences between Circuits, before and after Adjusting for Offense and Offender Characteristics

                                Odds on                                                       Odds on
                              substantial                                                        other
                              assistance    Unadjusted                Adjusted              downward                 Unadjusted           Adjusted
 Circuit                      departures         ratios                  ratios             departures                    ratios             ratios
 Eighth                              0.59                                                            0.14
 D.C.                                0.44          0.75*                    1.15                     0.31                  2.19*              2.16*
 First                               0.26          0.44*                   0.64*                     0.14                   1.02              0.78*
 Second                              0.47          0.81*                     1.4*                    0.41                  2.92*              2.39*
 Third                               0.83          1.41*                     2.2*                    0.15                   1.05                  0.93
 Fourth                              0.49          0.84*                    1.01                     0.06                  0.43*              0.37*
 Fifth                               0.25          0.43*                   0.85*                     0.16                   1.11              0.55*
 Sixth                               0.71          1.22*                   1.68*                     0.10                  0.69*              0.57*
 Seventh                             0.45          0.78*                    0.91                     0.08                  0.55*              0.48*
 Ninth                               0.22          0.38*                   0.75*                     1.38                   9.9*              6.87*
 Tenth                               0.29          0.49*                   0.78*                     0.23                  1.67*                  1.2*
 Eleventh                            0.43          0.74*                    0.98                     0.09                  0.61*                  0.5*
Source: GAO analysis of USSC data.

                                              Note: Odds on substantial assistance departures were calculated using all cases. Odds on other
                                              downward departures were calculated using only cases not involving downward departures for
                                              substantial assistance. Ratios were calculated using the Eighth Circuit as the referent category.
                                              Adjusted ratios are from logistic regression models that control for offense and offender
                                              characteristics.
                                              *Odds ratio coefficients that are significant at the 0.05 level.


                                              Table 9 also shows that for those sentences that do not involve substantial
                                              assistance departures, (and again after adjusting for offense and offender
                                              characteristics), other downward departures are significantly more likely
                                              in 4 circuits than in the Eighth Circuit, significantly less likely in 6 circuits
                                              than in the Eighth Circuit, and no different in the other one. The fact that
                                              other downward departures are 6.87 times more likely in the Ninth Circuit
                                              than in the Eighth Circuit, but less likely by a factor of 0.37 in the Fourth
                                              Circuit than in the Eighth Circuit, implies that such departures are
                                              6.87/0.37 = 18.6 or 19 times as likely in the Ninth Circuit as in the Fourth
                                              Circuit.

                                              Table 10 shows that both the adjusted odds ratios on substantial
                                              assistance departures and other downward departures also varied
                                              substantially and significantly across districts. Substantial assistance
                                              departures were significantly more likely in 41 districts than in the
                                              Minnesota District. In the small Northern Mariana Islands District, for



                                              Page 50                                                            GAO-04-105 Federal Drug Sentences
                                        Appendix III: Likelihood of Sentences Falling
                                        below a Guideline Range or an Otherwise
                                        Applicable Mandatory Minimum




                                        example, substantial assistance departures were 10 times more likely than
                                        in the Minnesota District, and in the large New York Northern District,
                                        they were 5 times more likely. Twenty-three districts were not significantly
                                        different from the Minnesota District in terms of the likelihood of
                                        sentences departing for substantial assistance, and in the remaining 29
                                        districts substantial assistance departures were significantly less likely. In
                                        the Illinois Southern District, for example, substantial assistance
                                        departures were less likely by a factor of 0.11, which implies that the
                                        likelihood of substantial assistance departures were 9 times higher in the
                                        Minnesota District than they were there. Other districts, these odds imply,
                                        were even more disparate from one another. For example, these ratios
                                        imply that substantial assistance departures in the New York Northern
                                        District were 5.5/0.11=49.5 or 50 times more likely than in the Illinois
                                        Southern District.

Table 10: Odds on Substantial Assistance Departures and Other Downward Departures, and Odds Ratios Indicating the
Differences between Districts, before and after Adjusting for Offense and Offender Characteristics

                            Odds on                                                Odds on
                          substantial                                                 other
                          assistance       Unadjusted           Adjusted         downward           Unadjusted          Adjusted
District                  departures            ratios             ratios        departures              ratios            ratios
Minnesota                       0.45                                                    0.27
D.C. Circuit
District of Columbia            0.44               0.97               1.19              0.31               1.12              1.12
First Circuit
Maine                           1.10              2.44*              2.79*              0.07               0.27*            0.28*
Massachusetts                   0.42               0.93               1.01              0.37               1.35              1.17
New Hampshire                   0.75              1.66*              2.23*              0.15               0.56             0.42*
Puerto Rico                     0.08              0.17*              0.17*              0.06               0.23*            0.19*
Rhode Island                    0.10              0.23*              0.28*              0.13               0.48*            0.42*
Second Circuit
Connecticut                     0.32              0.71*              0.69*              0.69               2.56*            2.42*
New York Eastern                0.31              0.68*               0.97              0.71               2.61*            2.48*
New York Northern               2.13              4.75*              5.51*              0.34               1.23              0.95
New York Southern               0.32               0.7*              0.78*              0.19               0.69*            0.66*
New York Western                1.10              2.44*               4.5*              0.11                0.4*            0.49*
Vermont                         0.58               1.28              1.47*              0.48               1.78*            1.81*




                                        Page 51                                                GAO-04-105 Federal Drug Sentences
                                     Appendix III: Likelihood of Sentences Falling
                                     below a Guideline Range or an Otherwise
                                     Applicable Mandatory Minimum




                         Odds on                                                Odds on
                       substantial                                                 other
                       assistance       Unadjusted           Adjusted         downward           Unadjusted          Adjusted
District               departures            ratios             ratios        departures              ratios            ratios
Third Circuit
Delaware                     0.69               1.54              1.78*              0.14               0.50             0.37*
New Jersey                   0.47               1.04              1.29*              0.12               0.46*            0.45*
Pennsylvania
Eastern                       1.33             2.96*              3.41*              0.17               0.62*             0.6*
Pennsylvania Middle           1.25             2.79*              3.44*              0.17               0.62             0.56*
Pennsylvania
Western                       0.59              1.30               1.25              0.16               0.57*            0.49*
Virgin Islands                0.20             0.44*               1.00              0.11               0.41              0.54
Fourth Circuit
Maryland                      0.75             1.66*              1.76*              0.33               1.20              1.23
North Carolina
Eastern                       0.71             1.57*              1.37*              0.05               0.18*            0.15*
North Carolina
Middle                        0.52              1.15               1.05              0.03               0.11*            0.09*
North Carolina
Western                       1.66              3.7*              3.06*              0.16                0.6*            0.44*
South Carolina                0.62             1.38*              1.35*              0.03               0.11*            0.09*
Virginia Eastern              0.09              0.2*               0.2*              0.03               0.12*            0.12*
Virginia Western              0.72             1.61*              1.43*              0.04               0.14*            0.11*
West Virginia
Northern                      0.10             0.22*              0.24*              0.02               0.09*            0.06*
West Virginia
Southern                      0.19             0.41*              0.46*              0.04               0.15*            0.12*
Fifth Circuit
Louisiana Eastern             0.24             0.52*              0.53*              0.09               0.32*            0.34*
Louisiana Middle              1.36             3.02*              3.94*              0.08               0.28              0.32
Louisiana Western             0.48              1.07               1.03              0.05               0.19*            0.16*
Mississippi Northern          0.98             2.17*              2.02*              0.19               0.71              0.62
Mississippi Southern          0.63             1.41*              1.42*              0.05               0.19*            0.18*
Texas Eastern                 0.16             0.37*              0.38*              0.07               0.28*            0.23*
Texas Northern                0.44              0.98               0.97              0.07               0.25*            0.22*
Texas Southern                0.36              0.8*              1.28*              0.11               0.42*            0.35*
Texas Western                 0.13              0.3*              0.55*              0.22               0.81              0.6*




                                     Page 52                                                GAO-04-105 Federal Drug Sentences
                                    Appendix III: Likelihood of Sentences Falling
                                    below a Guideline Range or an Otherwise
                                    Applicable Mandatory Minimum




                        Odds on                                                Odds on
                      substantial                                                 other
                      assistance       Unadjusted           Adjusted         downward           Unadjusted          Adjusted
District              departures            ratios             ratios        departures              ratios            ratios
Sixth Circuit
Kentucky Eastern             0.68             1.51*              1.96*              0.04               0.16*            0.17*
Kentucky Western             0.19             0.43*              0.47*              0.03               0.12*            0.14*
Michigan Eastern             0.76             1.68*              2.02*              0.12               0.44*            0.43*
Michigan Western             0.80             1.78*              1.91*              0.13               0.47*            0.42*
Ohio Northern                0.77             1.72*               1.8*              0.20               0.74              0.76
Ohio Southern                1.19             2.65*              3.18*              0.19               0.70              0.76
Tennessee Eastern            0.69             1.54*              1.56*              0.04               0.14*            0.12*
Tennessee Middle             0.65             1.45*              1.58*              0.14               0.51*             0.58
Tennessee Western            0.68             1.51*               1.4*              0.07               0.26*            0.22*
Seventh Circuit
Illinois Central             1.27             2.82*              2.62*              0.14               0.52*            0.37*
Illinois Northern            0.60             1.34*              1.52*              0.17               0.62*            0.67*
Illinois Southern            0.06             0.14*              0.11*              0.04               0.15*            0.11*
Indiana Northern             0.34              0.76               0.97              0.05               0.18*            0.18*
Indiana Southern             1.39             3.08*              2.69*              0.09               0.32*            0.35*
Wisconsin Eastern            0.47              1.05               0.96              0.04               0.14*            0.12*
Wisconsin Western            0.20             0.46*              0.35*              0.03               0.12*             0.1*
Eighth Circuit
Arkansas Eastern             0.19             0.43*              0.35*              0.04               0.14*            0.12*
Arkansas Western             0.37              0.81               0.83              0.05               0.19*            0.18*
Iowa Northern                0.69             1.54*               1.03              0.12               0.44*            0.41*
Iowa Southern                0.79             1.76*               1.20              0.24               0.89              0.77
Missouri Eastern             0.57             1.26*               1.19              0.09               0.32*            0.31*
Missouri Western             1.44             3.21*              2.63*              0.09               0.33*             0.3*
Nebraska                     0.33             0.73*              0.52*              0.16               0.58*            0.54*
North Dakota                 0.62              1.38               1.16              0.15               0.56              0.65
South Dakota                 0.24             0.54*              0.57*              0.15               0.56*            0.58*
Ninth Circuit
Alaska                       0.24             0.54*              0.61*              0.17               0.61              0.69
Arizona                      0.15             0.34*              0.61*              1.98                7.3*            7.41*
California Central           0.19             0.42*              0.55*              0.17               0.63*             0.69
California Eastern           0.35              0.78               0.86              0.15               0.55*            0.51*
California Northern          0.18              0.4*              0.48*              0.38                1.4*            1.68*
California Southern          0.15             0.33*              0.65*              4.18             15.39*            14.69*




                                    Page 53                                                GAO-04-105 Federal Drug Sentences
                                                   Appendix III: Likelihood of Sentences Falling
                                                   below a Guideline Range or an Otherwise
                                                   Applicable Mandatory Minimum




                                       Odds on                                                         Odds on
                                     substantial                                                          other
                                     assistance       Unadjusted                Adjusted             downward             Unadjusted           Adjusted
 District                            departures            ratios                  ratios            departures                ratios             ratios
 Guam                                       1.18               2.63*                  2.12*                  0.03                 0.1*              0.13*
 Hawaii                                     0.47                1.05                   1.06                  0.16                 0.6*               0.76
 Idaho                                      1.62               3.61*                  4.16*                  0.16                0.57                0.58
 Montana                                    0.68                 1.5*                 1.76*                  0.10                0.36*              0.41*
 Nevada                                     0.23                 0.5*                 0.55*                  0.28                1.02                1.01
 Northern Mariana
 Islands                                    2.40               5.34*                10.08*                   0.00                0.00                0.00
 Oregon                                     0.48                1.07                   1.02                  0.22                0.80               0.59*
 Washington Eastern                         0.16               0.36*                  0.44*                  0.39                1.43                1.45
 Washington Western                         0.50                1.11                  1.34*                  0.28                1.04                1.17
 Tenth Circuit
 Colorado                                   1.07               2.38*                  3.82*                  0.17                0.64                0.76
 Kansas                                     0.41                0.92                   0.96                  0.11                 0.4*               0.4*
 New Mexico                                 0.15               0.34*                  0.54*                  0.31                1.14                1.02
 Oklahoma Eastern                           0.06               0.13*                  0.11*                  0.71                 2.6*              3.28*
 Oklahoma Northern                          0.27                 0.6*                 0.55*                  0.07                0.27*              0.26*
 Oklahoma Western                           0.28               0.62*                  0.52*                  0.04                0.15*              0.11*
 Utah                                       0.14               0.31*                   0.4*                  0.31                1.13                1.29
 Wyoming                                    0.52                1.15                   0.73                  0.13                0.46*              0.43*
 Eleventh Circuit
 Alabama Middle                             1.23               2.74*                  3.84*                  0.16                0.58                0.64
 Alabama Northern                           0.96               2.13*                  2.11*                  0.04                0.14*              0.15*
 Alabama Southern                           0.98               2.17*                   2.1*                  0.15                0.54*               0.5*
 Florida Middle                             0.59                 1.3*                 1.28*                  0.10                0.36*              0.31*
 Florida Northern                           0.62               1.39*                   1.25                  0.02                0.06*              0.05*
 Florida Southern                           0.19               0.42*                  0.44*                  0.07                0.26*              0.24*
 Georgia Middle                             0.64               1.42*                  1.88*                  0.09                0.33*              0.31*
 Georgia Northern                           0.43                0.96                   0.89                  0.16                 0.6*              0.55*
 Georgia Southern                           0.49                1.08                   1.09                  0.07                0.26*              0.22*
Source: GAO analysis of USSC data.

                                                   Note: Odds on substantial assistance departures were calculated using all cases. Odds on other
                                                   downward departures were calculated using only cases not involving downward departures for
                                                   substantial assistance. Ratios were calculated using the Minnesota district as the referent category.
                                                   Adjusted ratios are from logistic regression models that control for offense and offender
                                                   characteristics.
                                                   *Odd ratio coefficients that are significant at the 0.05 level.




                                                   Page 54                                                           GAO-04-105 Federal Drug Sentences
Appendix III: Likelihood of Sentences Falling
below a Guideline Range or an Otherwise
Applicable Mandatory Minimum




Table 10 also shows that for those sentences that do not involve
substantial assistance departures, other downward departures are
significantly more likely in 7 districts than in the Minnesota district,
significantly less likely in 62 districts than in the Minnesota district, and no
different in the remaining 23 districts.1 The fact that other downward
departures are 15 times more likely in the California Southern District than
in the Minnesota district, but less likely by a factor of 0.09 in the South
Carolina District than in the Minnesota District, implies that such
departures are 15/0.09 = 167 times as likely in the California Southern
District as in the South Carolina District.

Tables 11 and 12 pertain to mandatory minimum sentences and show that
substantial and often significant variation in the likelihood of sentences
falling below an otherwise applicable mandatory minimum exists even
after controls for differences in offense and offender characteristics
across circuits and districts. If we focus on the adjusted ratios in table 11
first, which estimate the differences among circuits after controls, we find
that there were some circuits in which the odds on sentences falling below
an otherwise applicable mandatory minimum due to substantial assistance
were significantly higher than in the Eighth Circuit, and others in which
those odds were significantly lower.




1
 As noted in table 10, USSC data contained no “other downward departure” sentences in
drug cases in the Northern Mariana Islands District for fiscal years 1999 through 2001.




Page 55                                             GAO-04-105 Federal Drug Sentences
                                               Appendix III: Likelihood of Sentences Falling
                                               below a Guideline Range or an Otherwise
                                               Applicable Mandatory Minimum




Table 11: Odds on Mandatory Minimum Sentences Falling below an Otherwise Applicable Mandatory Minimum for Substantial
Assistance and for Other Reasons, and Odds Ratios Indicating the Differences between Circuits, before and after Adjusting
for Offense and Offender Characteristics

                                   Odds on                                                      Odds on
                              falling below                                                falling below
                            for substantial   Unadjusted                Adjusted                for other             Unadjusted           Adjusted
 Circuit                        assistance         ratios                  ratios                reasons                   ratios             ratios
 Eighth                               0.44                                                             0.36
 D.C.                                 0.42            0.95                   1.54*                     0.33                  0.91              2.55*
 First                                0.23           0.53*                   0.67*                     0.64                  1.78*              0.99
 Second                               0.51           1.16*                     1.7*                    0.85                  2.38*             1.53*
 Third                                0.68           1.53*                   2.29*                     0.75                  2.08*             1.54*
 Fourth                               0.33           0.74*                    0.99                     0.23                  0.64*              0.94
 Fifth                                0.25           0.55*                   0.71*                     0.85                  2.37*              1.17
 Sixth                                0.63           1.43*                   1.74*                     0.33                  0.93               0.94
 Seventh                              0.31           0.71*                   0.88*                     0.33                  0.93               1.01
 Ninth                                0.37           0.83*                    1.04                     1.21                  3.37*                 2*
 Tenth                                0.29           0.65*                   0.78*                     0.89                  2.47*              1.25
 Eleventh                             0.30           0.68*                     0.9*                    0.75                  2.09*              1.14
Source: GAO analysis of USSC data.

                                               Note: The odds on sentences falling below for substantial assistance were calculated using all cases.
                                               The odds on sentences falling below for other reasons were calculated using only cases that did not
                                               fall below for substantial assistance. Ratios were calculated using the Eighth Circuit as the referent
                                               category. Adjusted ratios are from logistic regression models that control for offense and offender
                                               characteristics.
                                               *Odds ratio coefficients that are significant at the 0.05 level.


                                               The same is true of the likelihood of sentences falling below an otherwise
                                               applicable mandatory minimum for reasons other than substantial
                                               assistance. The adjusted ratios in table 11 suggest that the biggest
                                               difference in the likelihood of mandatory minimum sentences falling
                                               below an otherwise applicable mandatory minimum due to substantial
                                               assistance involved the Third and First Circuits (such sentences were
                                               2.29/0.67=3.4 times more likely in the former circuit than in the latter),
                                               while the biggest difference in the likelihood of mandatory minimum
                                               sentences falling below an otherwise applicable mandatory minimum for
                                               reasons other reasons, such as the safety valve, involved the D.C. vs. the
                                               Fourth and Sixth Circuits (such sentences were 2.55/0.94=2.7 times more
                                               likely in the former circuit than in the latter two).

                                               Table 12 shows, similarly, that in many districts judges were much more
                                               likely than in the Minnesota district to issue sentences below a mandatory



                                               Page 56                                                            GAO-04-105 Federal Drug Sentences
                                        Appendix III: Likelihood of Sentences Falling
                                        below a Guideline Range or an Otherwise
                                        Applicable Mandatory Minimum




                                        minimum to offenders facing a mandatory minimum, both for reasons of
                                        substantial assistance and for other reasons; and, at the same time, judges
                                        in many other districts were less likely to do so, overall.

Table 12: Odds on Mandatory Minimum Sentences Falling below an Otherwise Applicable Mandatory Minimum for Substantial
Assistance and for Other Reasons, and Odds Ratios Indicating the Differences between Districts, before and after Adjusting
for Offense and Offender Characteristics

                          Odds on falling                                                Odds on
                               below for                                            falling below
                             substantial    Unadjusted          Adjusted                 for other   Unadjusted       Adjusted
District                     assistance          ratios            ratios                 reasons         ratios         ratios
Minnesota                            0.37                                                    0.54
D.C. Circuit
Dist of Columbia                     0.42          1.13              2.78                    0.33           0.6*           1.83
First Circuit
Maine                                1.08         2.91*              1.02                    0.72          1.33            0.70
Massachusetts                        0.50         1.34*             2.55*                    0.57          1.05            1.03
New Hampshire                        0.72         1.94*              0.69                    0.82          1.50            0.42
Puerto Rico                          0.07         0.18*             0.27*                    0.65          1.20            0.74
Rhode Island                         0.07           0.2*             0.31                    0.63          1.16            0.81
Second Circuit
Connecticut                          0.28          0.75             3.69*                    0.57          1.05           3.89*
New York Eastern                     0.43          1.17               3.5*                   1.17          2.15*           1.68
New York Northern                    2.33         6.26*             2.75*                    0.98           1.8*           2.02
New York Southern                    0.33          0.88             6.16*                    0.80          1.48*           0.75
New York Western                     0.85         2.29*              1.02                    0.43           0.80           1.34
Vermont                              1.19         3.19*              6.71                    0.53           0.97           3.95
Third Circuit
Delaware                             0.57          1.52              0.43                    0.29           0.53           1.50
New Jersey                           0.43          1.16               0.8                    1.50          2.77*           0.87
Pennsylvania Eastern                 1.07         2.88*             2.33*                    0.62           1.13           1.37
Pennsylvania Middle                  0.59         1.58*             0.32*                    0.33           0.60          4.49*
Pennsylvania Western                 0.45            1.2             1.18                    0.36          0.66*           0.92
Virgin Islands                       0.44          1.18                                      0.33           0.61           0.34
Fourth Circuit
Maryland                             0.40          1.07             0.44*                    0.23          0.42*           1.87
North Carolina Eastern               0.30            0.8            0.28*                    0.15          0.27*           0.44
North Carolina Middle                0.27         0.72*             0.46*                    0.15          0.28*          0.38*
North Carolina Western               0.70         1.88*             0.53*                    0.36          0.66*          3.04*




                                        Page 57                                              GAO-04-105 Federal Drug Sentences
                                       Appendix III: Likelihood of Sentences Falling
                                       below a Guideline Range or an Otherwise
                                       Applicable Mandatory Minimum




                         Odds on falling                                                Odds on
                              below for                                            falling below
                            substantial    Unadjusted          Adjusted                 for other   Unadjusted       Adjusted
District                    assistance          ratios            ratios                 reasons         ratios         ratios
South Carolina                     0.39           1.05             0.39*                    0.23          0.43*           0.64
Virginia Eastern                   0.08            0.2*             0.83                    0.23          0.42*           0.5*
Virginia Western                   0.63          1.69*              1.92                    0.29          0.54*           0.58
West Virginia Northern             0.07          0.19*                                      0.15          0.27*           0.31
West Virginia Southern             0.14          0.37*              0.39                    0.29          0.53*           1.07
Fifth Circuit
Louisiana Eastern                   0.20         0.53*              0.57                    0.58           1.07           1.68
Louisiana Middle                   0.68           1.83             0.23*                    0.33           0.61           0.85
Louisiana Western                   0.14         0.37*             0.12*                    0.08          0.14*          0.24*
Mississippi Northern               0.37              1             0.36*                    0.27          0.49*          2.88*
Mississippi Southern               0.48           1.28             0.27*                    0.45           0.83          0.34*
Texas Eastern                      0.12          0.33*             0.39*                    0.28          0.52*           0.52
Texas Northern                     0.33           0.88             0.43*                    0.40           0.74           0.63
Texas Southern                     0.27          0.72*              0.63                    1.07          1.96*           0.77
Texas Western                      0.22          0.59*             0.45*                    1.44          2.65*          1.76*
Sixth Circuit
Kentucky Eastern                   1.10          2.97*             2.46*                    0.52           0.96           0.71
Kentucky Western                   0.16          0.44*             0.16*                    0.23          0.42*           0.4*
Michigan Eastern                   0.67          1.79*              0.85                    0.38          0.71*           0.89
Michigan Western                   0.46           1.24             0.16*                    0.32          0.58*           0.79
Ohio Northern                      0.73          1.96*              0.85                    0.38           0.7*           1.37
Ohio Southern                      0.87          2.35*               0.6                    0.29          0.54*           0.59
Tennessee Eastern                  0.54          1.44*             0.45*                    0.32          0.59*           0.57
Tennessee Middle                   0.66          1.77*               1.4                    0.30          0.54*           0.65
Tennessee Western                  0.46           1.23              0.69                    0.22           0.4*           0.65
Seventh Circuit
Illinois Central                   0.54          1.46*             0.38*                    0.14          0.27*           0.37
Illinois Northern                  0.45             1.2             0.71                    0.71           1.30           1.07
Illinois Southern                  0.04          0.11*              0.42                    0.22           0.4*           0.78
Indiana Northern                   0.29           0.77              0.59                    0.33           0.6*           0.85
Indiana Southern                   0.81          2.19*              0.55                    0.39           0.71           1.49
Wisconsin East                     0.29           0.78              0.66                    0.34          0.63*           0.77
Wisconsin West                     0.10          0.28*             0.09*                    0.17          0.31*           0.1*




                                       Page 58                                              GAO-04-105 Federal Drug Sentences
                                         Appendix III: Likelihood of Sentences Falling
                                         below a Guideline Range or an Otherwise
                                         Applicable Mandatory Minimum




                           Odds on falling                                                Odds on
                                below for                                            falling below
                              substantial    Unadjusted          Adjusted                 for other   Unadjusted       Adjusted
District                      assistance          ratios            ratios                 reasons         ratios         ratios
Eighth Circuit
Arkansas Eastern                     0.18          0.47*              0.62                    0.27           0.5*           0.64
Arkansas Western                     0.23           0.61             0.15*                    0.35           0.64           0.78
Iowa Northern                        0.35           0.93             0.35*                    0.21          0.39*           0.75
Iowa Southern                        0.43           1.15             0.33*                    0.42           0.77           1.02
Missouri Eastern                     0.48            1.3*              0.6                    0.33          0.61*           0.61
Missouri Western                     1.12          3.02*              1.29                    0.29          0.54*           0.61
Nebraska                             0.27          0.74*              0.94                    0.39          0.73*           0.73
North Dakota                         0.83          2.24*              1.98                    0.27           0.50           0.27
South Dakota                         0.30           0.82              0.39                    0.23          0.43*          0.16*
Ninth Circuit
Alaska                               0.24           0.64              0.67                    0.38           0.70           1.09
Arizona                              0.26          0.69*              1.87                    3.73          6.87*           7.5*
California Central                   0.16          0.42*              0.53                    0.73           1.35           0.86
California Eastern                   0.30             0.8             0.77                    0.42           0.77           0.57
California Northern                  0.19            0.5*             1.07                    0.60           1.11           1.04
California Southern                  0.51          1.37*             2.27*                    2.68          4.94*          2.61*
Guam                                 1.09          2.94*              1.55                    0.72           1.33           0.2*
Hawaii                                0.49          1.31              1.36                    0.56           1.03           0.3*
Idaho                                 0.59            1.6            0.34*                    0.25           0.46           1.07
Montana                              0.66          1.77*              0.89                    0.22          0.41*           0.81
Nevada                                0.23         0.61*              0.48                    0.63           1.15           0.65
Northern Mariana Islands             2.00          5.37*              0.28                    1.00           1.84           0.93
Oregon                               0.37           1.01             0.27*                    0.56           1.02           0.66
Washington Eastern                   0.20          0.53*              0.66                    0.70           1.29           0.73
Washington Western                   0.54          1.44*              1.23                    0.69           1.27           1.48
Tenth Circuit
Colorado                              1.07         2.89*              0.68                    0.73           1.34           1.57
Kansas                               0.28           0.76               0.3*                   0.28          0.51*          0.41*
New Mexico                           0.19            0.5*                1                    1.99          3.66*           0.86
Oklahoma Eastern                     0.07          0.19*                                      0.65           1.20         10.79*
Oklahoma Northern                    0.26           0.71              0.53                    0.24          0.45*           1.50
Oklahoma Western                     0.21          0.56*              0.88                    0.16          0.29*          0.22*
Utah                                 0.19          0.51*                                      1.05          1.92*           2.50
Wyoming                               0.37             1             0.18*                    0.42           0.77           1.19




                                         Page 59                                              GAO-04-105 Federal Drug Sentences
                                                   Appendix III: Likelihood of Sentences Falling
                                                   below a Guideline Range or an Otherwise
                                                   Applicable Mandatory Minimum




                                     Odds on falling                                                        Odds on
                                          below for                                                    falling below
                                        substantial    Unadjusted               Adjusted                    for other       Unadjusted        Adjusted
 District                               assistance          ratios                 ratios                    reasons             ratios          ratios
 Eleventh Circuit
 Alabama Middle                                0.91             2.45*                0.46*                           0.34          0.62            1.81
 Alabama Northern                              0.59             1.59*                 0.63                           0.27         0.49*            0.75
 Alabama Southern                              0.69             1.85*                 0.75                           0.27         0.49*             0.3*
 Florida Middle                                0.38              1.03                0.46*                           0.44          0.82            0.68
 Florida Northern                              0.49              1.32                 1.63                           0.16          0.3*            0.79
 Florida Southern                              0.17             0.44*                 0.56                           1.56         2.87*            1.12
 Georgia Middle                                0.33              0.88                  0.2*                          0.21         0.39*           0.23*
 Georgia Northern                              0.28             0.75*                0.26*                           0.47          0.86            1.11
 Georgia Southern                              0.23             0.62*                0.18*                           0.12         0.21*           0.25*
Source: GAO analysis of USSC data.

                                                   Note: The odds on sentences falling below for substantial assistance were calculated using all cases.
                                                   The odds on sentences falling below for other reasons were calculated using only cases that did not
                                                   fall below for substantial assistance. Ratios were calculated using the Minnesota District as the
                                                   referent category. Adjusted ratios are from logistic regression models that control for offense and
                                                   offender characteristics.
                                                   *Odd ratio coefficients that are significant at the 0.05 level.




                                                   Page 60                                                           GAO-04-105 Federal Drug Sentences
Appendix IV: Data for Analyzing Departures
and Mandatory Minimum Sentences at
Circuit and District Court Levels Limited
                          Overall, the data the U.S. Sentencing Commission (USSC) has received

                          from district courts and judges were generally sufficient for our analyses 

                          of downward departures and mandatory minimum sentences across 

                          circuits and for most districts. Missing data due to missing sentencing 

                          documents or information posed few limitations for our analysis. 

                          However, opportunities for improvement exist. 



                          Under the authority of the Sentencing Reform Act of 1984, USSC required 

Documents USSC            courts to forward to it the following five sentencing documents in every 

Requests from             guidelines case.1 The PROTECT Act of 2003 codifies this data collection

                          requirement: 

District Courts
                      •   the Judgment and Commitment Order (J&C); 

                      •   the Statement of Reasons (SOR); 

                      •   the Pre-sentence Report (PSR); 

                      •   any written plea agreements, if applicable; and 

                      •   all indictments or other charging documents. 


                          Under the PROTECT Act, courts are to send to USSC a “Report of 

                          Sentence” enclosing the required sentencing documents within 30 days of

                          a judgment, and the Chief Judge in every district is to ensure that their 

                          courts do so.2



                          Of the five sentencing documents submitted by district courts, USSC 

How USSC Uses             officials told us they rely primarily on the J&C, SOR, and PSR to obtain the 

Documents to Create       sentencing information that USSC staff code into USSC database. From 

                          the J&C, USSC obtains data on the sentence, including the number of 

Its Database              months of any imprisonment, the statute of conviction, and whether any 

                          mandatory minimum sentence applied. USSC officials also said that they 

                          rely almost exclusively on the SOR to obtain data on the basis for the 

                          sentence, such as whether the sentence imposed fell within or outside the 

                          applicable sentencing guidelines range as determined by the court, the 

                          reason(s) for any departure, and whether a substantial assistance motion

                          or safety valve adjustment was used. If the SOR is missing, USSC coding 




                          1
                           28 U.S.C. 994(w), 995(a)(8). Courts are also to forward additional documentation related
                          to actions taken after sentencing, such as revocations of probation or resentencing under
                          Federal Rule of Criminal Procedure 35(b).
                          2
                          P.L. 108-21, sec. 401(h), amending 28 U.S.C. 994(w).




                          Page 61                                                GAO-04-105 Federal Drug Sentences
                     Appendix IV: Data for Analyzing Departures
                     and Mandatory Minimum Sentences at Circuit
                     and District Court Levels Limited




                     procedures have required document analysts to record the departure
                     status as missing, although other documents, such as the plea agreement,
                     may have information that indicate whether and why the sentence
                     departed. USSC is initiating some changes in its coding procedures as
                     discussed below. From the PSR, which is drafted by a district probation
                     officer, USSC obtains demographic and other background information
                     about offenders, an initial sentencing recommendation according to the
                     guidelines, and other sentencing information such as whether the offense
                     of conviction had a mandatory minimum (should this information not be
                     noted in the J&C), and whether the safety valve could potentially be
                     applied (in certain limited circumstances where this information has not
                     been recorded in a SOR).


                     Our analysis shows that district courts provided these five sentencing
USSC Receives Most   documents to USSC for the great majority of drug sentences imposed in
of Requested         fiscal years 1999-2001. Of 72,283 drug sentences imposed during this
                     period, district courts submitted between 96 and 99 percent of the three
Sentencing           key sentencing documents– the J&C (99 percent), SOR (96 percent), and
Documents            PSR (98 percent)—from which USSC obtains sentencing data. According
                     to USSC data, a lower percentage of plea agreements (89 percent) and
                     indictments (87 percent) were submitted during this time period. During
                     the period of our review, USSC did not primarily rely on these two
                     documents for departure information. Table 13 shows, by circuit, the
                     percentage of each type of sentencing document USSC did not receive in
                     fiscal years 1999-2001.




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                                               and District Court Levels Limited




Table 13: Percent of Missing Drug Sentencing Documents, by Circuit, as Shown in USSC’s Database for Fiscal Years 1999-
2001

 Sentencing              National
 documents               average     D.C.   First Second   Third Fourth     Fifth   Sixth Seventh Eighth Ninth   Tenth   Eleventh
 Judgment and
 commitment
 order                        0.7%   2.0%   0.2%   0.8%    1.1%     1.4%    0.5%    0.5%    0.3%    0.4% 1.0%     0.4%      0.6%
 Statement of
 reasons                      3.7%   0.5%   4.9%     5%    1.4%     7.4%    1.6%    1.9%    2.5%    1.3% 6.6%     4.5%      2.4%
 Presentence
 report                       1.5%   1.3%   2.3%   1.8%    1.8%     1.7%    1.2%    1.3%    2.3%    1.1% 1.6%     1.8%      0.9%
 Plea
 agreement                     11%   33%    12%     50%      5%       7%      9%      7%      8%     5%     8%     9%         9%
 Indictment                    13%   39%     3%     75%     32%     10%       5%      3%     20%     3%     5%     6%         7%
Source: GAO analysis of UUSC data.


                                               Among the 12 circuits, the rate of missing SORs—the principal document
                                               used to determine the reason for a sentencing departure—ranged from
                                               less than 1 percent to about 7 percent. Two of the 4 circuits in which the
                                               highest number of drug sentences were imposed were also missing the
                                               highest percent of their SORs–the 9th Circuit at 6.6 percent and the Fourth
                                               Circuit at 7.4 percent. A circuit’s average can mask wide differences
                                               among the districts within the circuit. For example, the percentages of
                                               missing SORs among districts in the Ninth Circuit ranged from less than
                                               1 percent to 58 percent and in the Fourth Circuit from less than 1 percent
                                               to 20 percent.


                                               USSC reviews the documents it receives from the district courts and
USSC Takes Steps to                            annually sends a letter to each district court identifying the cases in which
Reduce Missing                                 documents appear to be missing. Additionally, in its annual report, USSC
                                               discloses the overall document submission rate for all criminal cases for
Document Rate                                  the J&C, SOR, and PSR documents. USSC also attempts to identify
                                               guidelines cases for which the courts may not have submitted any
                                               sentencing documents. By linking data from a database maintained by
                                               AOUSC with the data on cases in its database, USSC develops a list of
                                               cases for which it has not yet received documentation. USSC sends this
                                               list of cases to the relevant district courts and asks them to review the list
                                               and forward any documents USSC should have received.




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                                                   In addition to missing sentencing documents, the documents USSC
Missing or Difficult to                            received in fiscal years 1999-2001 had missing information or information
Interpret Information                              that was difficult to interpret. As shown in table 14, among the circuits
                                                   departure data were missing for 1 percent to 7 percent of drug sentences
Can Affect Analysis of                             imposed in fiscal years 1999-2001. In addition, for 4 percent to 15 percent
Departures                                         of sentences, information was missing on whether the safety value was
                                                   used as the basis for sentencing below a mandatory minimum.

Table 14: Percent of Missing Drug Sentencing Information on Documents USSC Received, by Circuit, Fiscal Years 1999-2001

 Sentencing              National
 information             average      D.C.   First Second     Third Fourth      Fifth   Sixth Seventh Eighth Ninth   Tenth   Eleventh
 Departure
 information                     4%    3%     5%       5%       2%       8%      2%       2%     3%      1%     7%     5%         3%
 Safety valve
 applied                         8%   11%    10%      10%      13%     15%       4%       5%     7%      6%   12%      7%         4%
Source: GAO analysis of UUSC data.


                                                   Nationally, of the 72,283 federal drug sentence imposed in fiscal years
                                                   1999-2001, 3,004 (4 percent) were coded as missing information necessary
                                                   to determine whether the sentence departed from an applicable guideline
                                                   range. Of these, 2,118 sentences were missing information because the
                                                   SOR had not been received, and for 570, the SOR was received but did not
                                                   include departure information.

                                                   Missing or unclear data also limited our ability to determine when the
                                                   safety valve was used as the basis for sentencing below an otherwise
                                                   applicable mandatory minimum. For example, in our preliminary analysis,
                                                   we found that of the 11,256 federal drug sentences for which the offense of
                                                   conviction carried a mandatory minimum and fell below that minimum,
                                                   about 1,600 (14 percent) were coded by USSC as falling below the
                                                   applicable mandatory minimum but not involving either the safety valve or
                                                   substantial assistance. We discussed this issue with USSC. After reviewing
                                                   the underlying documents used for coding these 1,600 sentences, USSC
                                                   determined that over 900 sentences were miscoded. These miscoded
                                                   sentences were recoded in a variety of ways, including some coded as
                                                   involving the safety valve, some coded as involving substantial assistance,
                                                   some coded as having a changed drug quantity that affected the applicable
                                                   mandatory minimum, and some coded as missing safety valve information.
                                                   USSC did not recode 681 sentences; these sentences remained coded as
                                                   falling below a mandatory minimum but involving neither the safety valve
                                                   nor substantial assistance. In addition, safety valve information was
                                                   determined to be missing from 770 sentences for which the offense of



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                    conviction carried and fell below a mandatory minimum. A USSC official
                    said that there is no specific prompt on the SOR asking for information on
                    the application of the safety valve or whether the offense of conviction
                    carried a mandatory minimum.

                    On the basis of our analysis, missing or incomplete sentencing information
                    is unlikely to affect analyses nationally or by circuit but could affect the
                    analysis of departures in districts where the missing documents or
                    information are concentrated. Missing or incomplete sentencing
                    information may also affect USSC’s records for individual judges and thus
                    USSC’s ability to provide accurate judge-specific sentencing analysis were
                    Congress to request this information under the auspices of the PROTECT
                    Act.


                    USSC officials told us that they have not generally followed-up with
USSC Actions to     district courts to obtain information that is missing from submitted
Improve Coding      documents or is unclear (e.g., whether the safety valve provision was the
                    basis for a sentence below an applicable mandatory minimum). USSC staff
                    does not use information from one document to substitute for missing or
                    unclear information in another document. As a result of coding issues we
                    identified during this review, USSC plans to implement new quality control
                    and review procedures for sentences where information on the SOR is
                    missing, incomplete, or unclear. These include identifying common errors
                    for coding staff, using technology to develop automatic edit checks for
                    apparently contradictory coding information for a sentence (e.g., those
                    below an applicable mandatory minimum whose reason for departure is
                    not substantial assistance or the safety valve), and having a staff attorney
                    review sentences in which the coding supervisor is unable to determine
                    the appropriate coding.


                    Officials from USSC, the AOUSC, and the Judicial Conference Committee
Multiple Reasons    on Criminal Law cited several reasons that sentencing documents or
Cited for Missing   information on sentencing documents were missing. First, USSC and
                    AOUSC officials told us that some judges do not provide all the
Documentation and   documents, in part because judges may be unclear whether documents
Information         under court seal or that pertain to individuals in the federal witness
                    protection program are to be forwarded to USSC.

                    Second, USSC relies almost exclusively on the SOR to determine whether
                    the sentence departed, met a mandatory minimum, or involved substantial
                    assistance. If the SOR is missing, USSC’s coding procedures require


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     document analysts to record the departure status as missing, even if other
     documents, such as the plea agreement, suggests that a departure may by
     recommended by the government. As a result, incomplete information
     prevents USSC from collecting some sentencing data, as illustrated below
     by two examples drawn from drug sentences imposed during fiscal years
     1999-2001:

•	   In one case, the SOR did not indicate the reason the court sentenced the
     offender to 97 months—a sentence below the applicable 10-year (120
     month) mandatory minimum. Without this information on the SOR, under
     the coding conventions used, USSC document analysts could not record
     substantial assistance as the reason that the sentence of 97 months fell
     below a mandatory minimum even though the plea agreement (prepared
     by the parties) and the PSR (prepared by the probation officer) indicated
     that a substantial assistance motion was to have been made.

•	   In another case, the SOR stated that the court was crediting the offender
     for time served but failed to state the specific amount of time being
     credited. Unable to determine the amount of time being credited, and thus
     the sentence length being imposed, USSC document analysts could not
     determine whether the sentence departed or met an applicable mandatory
     minimum.

     Third, judges report the information using different versions of the SOR
     forms that can make consistent interpretation more difficult. For example,
     some jurisdictions provide one-page, single-spaced narratives that report
     the sentence and, in rare cases, others provide a transcript of the
     sentencing hearing instead of an SOR. According to USSC officials,
     interpreting multiple forms that report sentencing information in different
     ways and in different locations complicates the process of coding
     sentencing data such as departure status and use of the safety valve and
     may lead to missing sentencing information. USSC officials stated the
     single most effective step towards improving the completeness of data the
     courts report and USSC’s ability to code it would be the increased use of a
     standard SOR. The Judicial Conference at its September 2003 meeting
     accepted revisions to the standard SOR. The Conference designated the
     revised form as the mechanism by which courts comply with the
     requirements of the PROTECT Act to report reasons for sentences to
     USSC. The Committee plans to encourage judges to use it through
     education about the benefits of its use, but the Chair of the Committee
     stated that the Committee does not believe it has the authority to require
     the use of the new SOR. Officials from AOUSC and the Committee said
     they believe that with additional education judges will routinely use the



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                          new standard SOR, resulting in more useful and higher quality data
                          reported to USSC.

                          Last, according to officials from AOUSC and the Criminal Law Committee,
                          judges and other court officials lack an awareness of how to complete the
                          SORs with a level of detail that would allow USSC to collect sentencing
                          information. The Committee official said that education for judges and
                          other court officials is needed on how to properly complete the SOR. In
                          addition, no feedback mechanism is in place to inform judges that
                          information on the SOR was incomplete or unclear to USSC and,
                          therefore, cases are coded as missing sentencing information. Although
                          USSC contacts the courts to request missing sentencing documents be
                          submitted, it does not provide a similar list of documents that contained
                          information coded as missing. Without knowing which cases are coded as
                          missing sentencing information, judges cannot clarify or complete
                          information needed by USSC.

                          While USSC and the Federal Judicial Center offer programs and
                          workshops on application of the guidelines to judges and other court
                          officials, no education programs are provided on how to complete the SOR
                          in ways that provide clear, complete information. Officials from USSC,
                          AOUSC, and Criminal Law Committee said that education on how to apply
                          increasingly complex guidelines has been their focus, not educating judges
                          and other officials to correctly complete the SOR. Officials also said that in
                          the future it would be possible to provide programs at judicial workshops
                          or through the Federal Judicial Center that educates judges and other
                          court officials on how to provide clear, complete reports on sentencing.


                          The category “other downward departures” generally thought to represent
Other Downward            judicial discretion may also reflect downward departures resulting from
Departures Do Not         prosecutorial discretion and initiative. In this report we classified
                          departures as either “substantial assistance” or “other downward”
Solely Reflect Judicial   departures. Substantial assistance departures can be viewed as a measure
Discretion                of prosecutorial discretion because only the prosecutor has the authority
                          to initiate and recommend to the court that an offender be given a reduced
                          sentence for substantial assistance to the prosecution. Neither the judge
                          nor defense counsel may do so. The remaining departures, “other
                          downward departures,” are generally considered to be an indication of
                          judicial discretion. AOUSC officials suggested, however, that the category
                          “other downward departures” provides an imprecise measure of judicial
                          discretion. For example, AOUSC officials noted that some departures
                          classified in USSC database as other departures may actually arise from


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                                            agreements, particularly plea bargains, that either were initiated or
                                            supported by the government. We did not confirm this statement with
                                            federal prosecutors. USSC documents in its database up to three reasons
                                            judges provide for an other downward departure. According to USSC
                                            database for drug sentences in fiscal years 1999-2001, the first reason
                                            provided for an other downward departure in 18 percent of the sentences
                                            was the government’s fast track programs;3 in 16 percent, plea agreement;
                                            and in 4 percent, deportation. Tables 15, 16, and 17 detail for drug
                                            sentences the number and percent of other downward departures
                                            associated with the first, second, and third reasons provided for those
                                            departures.

Table 15: First Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years 1999-
2001

                                                                      Number of other                                Percent of other
                                                                          downward                              downward departures
First reason                                                              departures                              for drug sentences
No Reason given                                                                       16                                                  *
(5G1.3) Convictions on related counts                                                 10                                                  *
(5H1.1) Age                                                                           40                                                  *
(5H1.2) Educational and vocational skills                                              1                                                  *
(5H1.3) Mental and emotional conditions                                               55                                            1%
(5H1.4) Physical condition                                                          223                                             2%
(5H1.4) Drug dependence and alcohol
abuse                                                                                 21                                                  *
(5H1.5) Previous employment record                                                     5                                                  *
(5H1.6) Family ties and responsibilities                                            360                                             3%
(5H1.6) Community ties                                                                14                                                  *
(5K1.1) Substantial assistance at motion                                               1                                                  *
not 5K1.1 Cooperation without motion                                                  30                                                  *
Cooperation (motion unknown)                                                          34                                                  *
(5K2.0) Several persons injured                                                        1                                                  *
(5K2.2) Physical injury                                                                1                                                  *
(5K2.3) Extreme psychological injury                                                   1                                                  *

(5K2.6) Weapons and dangerous 

instrumentalities                                                                      1                                                  *





                                            3
                                             “Fast-track” or other early disposition programs in the southwest border districts provide
                                            lower sentences initiated by prosecutors for low-level drug trafficking offenses.




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                                             and Mandatory Minimum Sentences at Circuit
                                             and District Court Levels Limited




                                                                     Number of other                       Percent of other
                                                                         downward                     downward departures
First reason                                                             departures                     for drug sentences
(5K2.10) Victim’s conduct                                                           2                                         *
(5K2.11) Lesser harm                                                                4                                         *
(5K2.12) Coercion and duress                                                       74                                    1%
(5K2.13) Diminished capacity                                                      207                                    2%
Fast Track - Immigration                                                        1,969                                  18%
(2A1.1) Death not caused intentionally                                              2                                         *
(2A6.1) Factors not incorporated in
guideline                                                                           4                                         *
(2D1.1) Unusually high drug amount                                                 16                                         *
(2Q1.2, 2Q1.3) Harm resulting from risk                                             1                                         *
(4A1.3) Pattern of conduct                                                          2                                         *
(4A1.3) Pending cases                                                               1                                         *
General adequacy of criminal history;
does not reflect seriousness of criminal
history                                                                             7                                         *
Significance or similarity of past conduct                                          6                                         *
Criminal history category over-
represents the defendant’s involvement                                          1,169                                  11%
Pursuant to a plea agreement                                                    1,680                                  16%
Due to stipulations                                                                10                                         *
Other plea agreement reason                                                         1                                         *
Mule/Role in the offense                                                           89                                    1%
Deportation                                                                       472                                    4%
Local conditions                                                                    4                                         *
Adequate punishment to meet the
purposes of sentencing                                                             82                                    1%
Deterrence                                                                         36                                         *
Prey to other inmates                                                               3                                         *
Guidelines do not reflect the seriousness
of the offense                                                                      8                                         *
No prior record/first offender                                                      6                                         *
Put defendant’s sentence in line with co-
defendant’s. Reduce disparity.                                                      9                                         *
Lack of culpability/accountability of
defendant                                                                           5                                         *
Time or cost involved in the investigation                                          3                                         *
Acceptance of responsibility                                                       91                                    1%
Limited/minor prior record                                                          2                                         *




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                                           and Mandatory Minimum Sentences at Circuit
                                           and District Court Levels Limited




                                                                   Number of other                       Percent of other
                                                                       downward                     downward departures
 First reason                                                          departures                     for drug sentences
 Rehabilitation                                                                 191                                    2%
 Restitution                                                                      2                                         *
 Incapacitation                                                                   4                                         *
 Sufficient punishment                                                           23                                         *
 Nature/seriousness of the offense                                                5                                         *
 First felony conviction                                                          2                                         *
 Dollar amount involved in crime
 (general)                                                                        2                                         *
 Currently receiving punishment under
 state or federal jurisdiction                                                    1                                         *
 Defendant’s positive background/good
 character                                                                        2                                         *
 Military record                                                                  1                                         *
 Not representative of the “heartland”                                           93                                    1%
 Guidelines too high/offense level over-
 represented                                                                      2                                         *
 Guidelines too low/offense level under-
 represented                                                                      1                                         *
 (5K2.0) General aggravating or
 mitigating circumstance                                                      1,671                                  15%
 Other (SPECIFY)                                                                804                                    7%
 Defendant is a law enforcement officer
 or ex-law enforcement officer                                                    1                                         *
 Offense behavior was an isolated
 incident                                                                       995                                    9%
 Lower sentence gives defendant a
 chance to be a productive member of
 society                                                                          1                                         *
 (5K2.16) Voluntary disclosure                                                    7                                         *
 Lack of youthful guidance                                                        2                                         *
 Delay in prosecution; evidentiary
 concerns                                                                         2                                         *
 Time served                                                                     28                                         *
 Child abuse (child abuse/battered child
 syndrome)                                                                        4                                         *
 Remorse                                                                          2                                         *
 Missing/indeterminable                                                         191                                    2%
Source: GAO analysis of USSC data.




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Appendix IV: Data for Analyzing Departures
and Mandatory Minimum Sentences at Circuit
and District Court Levels Limited




Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-
2001 for which departure information is available and the sentence was coded an other downward
departure. USSC codes up to three reasons provided by judges as the bases for departing.
*Less than 1percent.




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                                             Appendix IV: Data for Analyzing Departures
                                             and Mandatory Minimum Sentences at Circuit
                                             and District Court Levels Limited




Table 16: Second Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years
1999-2001

Second reason                                               Number of drug sentences              Percent of drug sentences
(Second Reason field left blank)                                                  8,986                                82%
No reason given                                                                       1                                       *
(5H1.1) Age                                                                          20                                       *
(5H1.2) Educational and vocational skills                                             2                                       *
(5H1.3) Mental and emotional conditions                                              34                                       *
(5H1.4) Physical condition                                                           71                                  1%
(5H1.4) Drug dependence and alcohol
abuse                                                                                7                                     *
(5H1.5) Previous employment record                                                   4                                     *
(5H1.6) Family ties and responsibilities                                           105                                   1%
(5H1.6) Community ties                                                               3                                     *
not 5K1.1 Cooperation without motion                                                  7                                       *
Cooperation (motion unknown)                                                          4                                       *
(5K2.10) Victim’s conduct                                                             1                                       *
(5K2.12) Coercion and duress                                                         15                                       *
(5K2.13) Diminished capacity                                                        34                                     *
Fast Track - Immigration                                                           206                                   2%
(2A6.1) Factors not incorporated in                                                                                           *
guideline                                                                             1
(2D1.1) Unusually high drug purity                                                    1                                       *
(2D1.1) Unusually high drug amount                                                    1                                       *
Significance or similarity of past conduct                                            1                                       *
Criminal history category over-represents
the defendant’s involvement                                                          72                                  1%
(4B1.1) Career offender                                                               1                                    *
Pursuant to a plea agreement                                                         61                                  1%
Due to stipulations                                                                   2                                       *
Other plea agreement reason                                                           1                                       *
Mule/role in the offense                                                             44                                       *
Deportation                                                                          39                                       *
Local conditions                                                                      3                                       *
Adequate punishment to meet the                                                                                               *
purposes of sentencing                                                                9
Deterrence                                                                           13                                       *
Charge/plea does not reflect the                                                                                              *
seriousness of the offense                                                            1
No prior record/first offender                                                        7                                       *




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                                              and Mandatory Minimum Sentences at Circuit
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 Second reason                                                 Number of drug sentences                          Percent of drug sentences
 Put defendant’s sentence in line with                                                                                                           *
 codefendant’s. Reduce disparity.                                                            4
 Lack of culpability/accountability of                                                                                                           *
 defendant                                                                                   1
 Lack of available facilities/overcrowding                                                   1                                                   *
 Time or cost involved in the investigation                                                  2                                                   *
 Acceptance of responsibility                                                               18                                                   *
 Rehabilitation                                                                             46                                                   *
 Incapacitation                                                                              1                                                   *
 Sufficient punishment                                                                      12                                                   *
 First felony conviction                                                                     1                                                   *
 Defendant’s positive background/good                                                                                                            *
 character                                                                                   2
 Military record                                                                             1                                                   *
 Not representative of the “heartland”                                                      18                                                   *
 (5K2.0) General aggravating or mitigating
 circumstance                                                                             282                                                  3%
 Other (SPECIFY)                                                                          160                                                  1%
 Unknown                                                                                    2                                                    *
 Offense behavior was an isolated incident                                                567                                                  5%
 (5K2.16) Voluntary disclosure                                                               1                                                   *
 Lack of youthful guidance                                                                   6                                                   *

 Time served                                                                                 2                                                   *

 Child abuse (child abuse/battered child                                                                                                         *

 syndrome)                                                                                   3

 Missing/indeterminable                                                                      4                                                   *

Source: GAO analysis of USSC data.

                                              Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-
                                              2001 for which departure information is available and the sentence was coded an other downward
                                              departure. USSC codes up to three reasons provided by judges as the bases for departing.
                                              *Less than 1percent.




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                                             and Mandatory Minimum Sentences at Circuit
                                             and District Court Levels Limited




Table 17: Third Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years 1999-
2001

 Third reason                                                 Number of drug sentences                          Percent of drug sentences
 (Third Reason field left blank)                                                      10,705                                             98%
 (5H1.1) Age                                                                                7                                                 *
 (5H1.2) Educational and vocational skills                                                  1                                                 *
 (5H1.3) Mental and emotional conditions                                                    4                                                 *
 (5H1.4) Physical condition                                                                15                                                 *
 (5H1.5) Previous employment record                                                         3                                                 *
 (5H1.6) Family ties and responsibilities                                                  20                                                 *
 Cooperation (motion unknown)                                                               2                                                 *
 (5K2.11) Lesser harm                                                                       1                                                 *
 (5K2.12) Coercion and duress                                                               3                                                 *
 (5K2.13) Diminished capacity                                                               6                                                 *
 Fast Track - Immigration                                                                   5                                                 *
 (2D1.1) Unusually high drug amount                                                         1                                                 *
 Criminal history category over-represents the                                                                                                *
 defendant’s involvement                                                                    9
 Pursuant to a plea agreement                                                               6                                                 *
 Mule/role in the offense                                                                   8                                                 *
 Deportation                                                                                3                                                 *
 Local conditions                                                                           1                                                 *
 Deterrence                                                                                 3                                                 *
 No prior record/first offender                                                             3                                                 *
 Put defendant’s sentence in line with                                                                                                        *
 codefendant’s. Reduce disparity                                                            1
 Acceptance of responsibility                                                               3                                                 *
 Rehabilitation                                                                            12                                                 *
 Incapacitation                                                                             7                                                 *
 Defendant’s positive background/good character                                             1                                                 *
 Not representative of the “heartland”                                                      6                                                 *
 (5K2.0) General aggravating or mitigating                                                                                                    *
 circumstance                                                                              17
 Other (SPECIFY)                                                                           13                                                 *
 Offense behavior was an isolated incident                                                 24                                                 *
 Lack of youthful guidance                                                                  1                                                 *
Source: GAO analysis of USSC data.

                                             Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-
                                             2001 for which departure information is available and the sentence was coded an other downward
                                             departure. USSC codes up to three reasons provided by judges as the bases for departing.
                                             *Less than 1percent.




                                             Page 74                                                  GAO-04-105 Federal Drug Sentences
Appendix V: Comments from U.S. Sentencing
Commission




             Page 75          GAO-04-105 Federal Drug Sentences
Appendix V: Comments from U.S. Sentencing
Commission




Page 76                                     GAO-04-105 Federal Drug Sentences
Appendix VI: Comments from the Judicial
Conference Committee on Criminal Law




              Page 77         GAO-04-105 Federal Drug Sentences
Appendix VI: Comments from the Judicial Conference Committee on Criminal Law




Page 78                                           GAO-04-105 Federal Drug Sentences
                                     Appendix VI: Comments from the Judicial Conference Committee on Criminal Law




Copy of testimony is not included.




                                     Page 79                                           GAO-04-105 Federal Drug Sentences
Appendix VI: Comments from the Judicial Conference Committee on Criminal Law




Page 80                                           GAO-04-105 Federal Drug Sentences
Appendix VI: GAO Contacts and Staff
Acknowledgments

                  William O. Jenkins, Jr. (202) 512-8757
GAO Contacts      David Alexander (202) 512-4223


                  In addition to the persons named above, the following persons made key
Staff             contributions to this report: William W. Crocker, III, Christine Davis,
Acknowledgments   Barbara Hills, David Makoto Hudson, E. Anne Laffoon, William Sabol,
                  Doug Sloane, Wendy Turenne.




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