Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences

Iowa Law Review

Volumn 86, Issue 4, 2001, Pages 1043-1135

  Bowman III, Frank O ^a   Heise, Michael ^b  

^a INDIANA UNIVERSITY   (United States)

^b NONE

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EID: 0035609759     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (517)

1. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
2. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
3. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
4. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
5. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
6. For expressions of the common wisdom in law reviews, see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 903 (1991) (noting that the Guidelines have confined the discretion of judges and increased the power of prosecutors, especially in drug crimes where the Guidelines have produced "nonsense rules and inequalities"); Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 726 (1999) (describing the Guidelines as widely hated, dysfunctional, and one of the great failures of law reform in U.S. history that has been pouring offenders into federal prisons for longer and longer sentences); and Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1248-52 (1997) (arguing that judges have been reduced to the role of "accountants" or "notary publics"). For examples from the popular press, see Michael Brennan, A Case for Discretion: Are Mandatory Minimum Sentences Destroying Our Sense of Justice and Compassion?, NEWSWEEK, Nov. 13, 1995, at 18 (questioning harshly whether severe drug sentences resulting from the removal of sentencing discretion from judges and the allocation of a high degree of power to prosecutors is the American way); John Cloud, A Get-Tough Policy that Failed Mandatory Sentencing Was Once America's Law-and-Order Panacea. Here's Why It's Not Working, TIME, Feb. 1, 1999, at 48 (describing how drug policies are failing and drug sentences insult justice when a defendant can get a longer sentence for selling a neighbor a joint than for sexually abusing her); and Gregg Easterbrook, Run-on Sentencing, THE NEW REPUBLIC, Apr. 26, 1999, at 57-65 (asserting that the Guidelines sometimes dictate that judges impose lengthy sentences when there is no evidence that the defendant threatens society and that a considerable number of federal judges want discretion to reduce such sentences, now allegedly enjoyed by prosecutors, to be restored).
7. Mistretta v. United States, 488 U.S. 361 (1989). Prior to Mistretta, a great many federal district and appellate courts declared the Federal Sentencing Guidelines unconstitutional and declined to apply them. See, e.g., Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1265-67 (9th Cir. 1988), vacated sub nom, United States v. Chavez-Sanchez, 488 U.S. 1036, on remand, 871 F.2d 104 (9th Cir. 1989) (holding Federal Sentencing Guidelines unconstitutional on separation of powers grounds). For a comprehensive study of the decision-making processes of the courts that held the Guidelines unconstitutional, see Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377 (1998).
8. Transactional Records Access Clearinghouse (TRAC), Syracuse University, at http://trac.syr.edu/tracdea/findings/national/drugpri8199.html (last visited Feb. 23, 2001) [hereinafter TRAC study].
9. Id. See infra Part III.B fig.1 (representing the decline in average federal drug sentences). Figures collected independently by the Department of Justice also show a decline in overall average drug sentences from eighty-six months in 1992 to sixty-seven months in 1998, a 22% decline. See TRAC study, supra note 3, at http://trac.syr.edu/tracdea/findings/ aboutDEA/newFindings.html (last visited Feb. 23, 2001).
10. The United States Sentencing Commission figures for the years 1992 through 1998 appear in the TRAC study, supra, note 3, at http://trac.syr.edu/tracdea/findings/about DEA/newfindings.html (last visited Feb. 23, 2001). The average drug sentence reported by the U.S. Sentencing Commission for 1999 comes from the Commission's 1999 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 32, fig.E (2000) [hereinafter 1999 SOURCEBOOK], available at http://www.ussc.gov/ANNRPT/1999/fig-e.pdf (last visited Feb. 22, 2001). These United States Sentencing Commission figures represent the average prison sentence imposed on federal narcotics offenders who were actually sentenced to prison. Cases in which probation-only sentences were imposed are not included. The percentage of probation-only sentences ranged from 8.4% of the total number of defendants convicted on drug charges in 1993, see 1993 U.S. SENTENCING COMM'N, 1993 ANN. REP., 73 tbl.23 [hereinafter 1993 ANNUAL REPORT], to 5.8% in 1999, see 1999 SOURCEBOOK, supra, at 28 tbl.12, available at http://www.ussc.gov/ANNRPT/1999/table12.pdf (last visited Feb. 22, 2001). If probationary sentences are included in the average as zero months of imprisonment, the yearly averages are slightly lower. For example, the mean drug sentence in 1999 would be roughly seventy-three months, id. at 29 tbl.13, rather than seventy-five months. But the overall downward trend remains the same.
11. The United States Sentencing Commission figures for the years 1992 through 1998 appear in the TRAC study, supra, note 3, at http://trac.syr.edu/tracdea/findings/about DEA/newfindings.html (last visited Feb. 23, 2001). The average drug sentence reported by the U.S. Sentencing Commission for 1999 comes from the Commission's 1999 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 32, fig.E (2000) [hereinafter 1999 SOURCEBOOK], available at http://www.ussc.gov/ANNRPT/1999/fig-e.pdf (last visited Feb. 22, 2001). These United States Sentencing Commission figures represent the average prison sentence imposed on federal narcotics offenders who were actually sentenced to prison. Cases in which probation-only sentences were imposed are not included. The percentage of probation-only sentences ranged from 8.4% of the total number of defendants convicted on drug charges in 1993, see 1993 U.S. SENTENCING COMM'N, 1993 ANN. REP., 73 tbl.23 [hereinafter 1993 ANNUAL REPORT], to 5.8% in 1999, see 1999 SOURCEBOOK, supra, at 28 tbl.12, available at http://www.ussc.gov/ANNRPT/1999/table12.pdf (last visited Feb. 22, 2001). If probationary sentences are included in the average as zero months of imprisonment, the yearly averages are slightly lower. For example, the mean drug sentence in 1999 would be roughly seventy-three months, id. at 29 tbl.13, rather than seventy-five months. But the overall downward trend remains the same.
12. The United States Sentencing Commission figures for the years 1992 through 1998 appear in the TRAC study, supra, note 3, at http://trac.syr.edu/tracdea/findings/about DEA/newfindings.html (last visited Feb. 23, 2001). The average drug sentence reported by the U.S. Sentencing Commission for 1999 comes from the Commission's 1999 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 32, fig.E (2000) [hereinafter 1999 SOURCEBOOK], available at http://www.ussc.gov/ANNRPT/1999/fig-e.pdf (last visited Feb. 22, 2001). These United States Sentencing Commission figures represent the average prison sentence imposed on federal narcotics offenders who were actually sentenced to prison. Cases in which probation-only sentences were imposed are not included. The percentage of probation-only sentences ranged from 8.4% of the total number of defendants convicted on drug charges in 1993, see 1993 U.S. SENTENCING COMM'N, 1993 ANN. REP., 73 tbl.23 [hereinafter 1993 ANNUAL REPORT], to 5.8% in 1999, see 1999 SOURCEBOOK, supra, at 28 tbl.12, available at http://www.ussc.gov/ANNRPT/1999/table12.pdf (last visited Feb. 22, 2001). If probationary sentences are included in the average as zero months of imprisonment, the yearly averages are slightly lower. For example, the mean drug sentence in 1999 would be roughly seventy-three months, id. at 29 tbl.13, rather than seventy-five months. But the overall downward trend remains the same.
13. The degree to which federal criminal lawyers, judges, and interested academics remain unaware of the continued downward movement in drug sentences is not empirically verifiable. Suffice it to say that in the last year one of us (Bowman) has talked about the subject to several large groups of judges and sentencing specialists, and discussed it many times in private conversations, and reactions continue to range from mild surprise to outright astonishment.
14. See Frank O. Bowman, III, Fear of Law: Thoughts on "Fear of Judging" and the State of the Federal Sentencing Guidelines, 44 ST. LOUIS U. L.J. 299, 352 (2000) [hereinafter Bowman, Fear of Law] (noting a decline in drug trafficking sentences); Eric Lichtblau & Josh Meyer, Federal Drug Sentences Are Shrinking, Study Finds, L.A. TIMES, March 13, 2000 (reporting results of the TRAC study).
15. See Frank O. Bowman, III, Fear of Law: Thoughts on "Fear of Judging" and the State of the Federal Sentencing Guidelines, 44 ST. LOUIS U. L.J. 299, 352 (2000) [hereinafter Bowman, Fear of Law] (noting a decline in drug trafficking sentences); Eric Lichtblau & Josh Meyer, Federal Drug Sentences Are Shrinking, Study Finds, L.A. TIMES, March 13, 2000 (reporting results of the TRAC study).
16. See infra Part III (demonstrating that the decline in average drug sentences is significant).
17. See infra Part IV.A (suggesting effects of non-discretionary factors on declining sentence lengths).
18. In 1999, 23,082 defendants were sentenced in federal district courts for violations of drug statutes. 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
19. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984).
20. See generally FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL (1981) (discussing the rise and fall of the "rehabilitative ideal").
21. Michigan purportedly was the first state to adopt a sentencing system based at least in part on a "medical model." United States v. Scroggins, 880 F.2d 1204, 1207 n.6 (11th Cir. 1989); see also PAMALA L. GRISET, DETERMINATE SENTENCING: THE PROMISE AND REALITY OF RETRIBUTIVE JUSTICE 11 (1991) (discussing the "rise of the rehabilitative juggernaut" between 1877-1970, and noting that "[a] medical analogue was frequently invoked"); ALLEN, supra note 12, at 35 (referring to the "medical model" of sentencing). One anonymous prisoner wrote in 1911 that the theory of indeterminate sentencing prescribed that the offender should stay in prison, "until cured, just a person suffering from a physical disease or infection is sent to a hospital or asylum, to remain for such a period as may be necessary for his restoration to health." LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 160 (1993).
22. Michigan purportedly was the first state to adopt a sentencing system based at least in part on a "medical model." United States v. Scroggins, 880 F.2d 1204, 1207 n.6 (11th Cir. 1989); see also PAMALA L. GRISET, DETERMINATE SENTENCING: THE PROMISE AND REALITY OF RETRIBUTIVE JUSTICE 11 (1991) (discussing the "rise of the rehabilitative juggernaut" between 1877-1970, and noting that "[a] medical analogue was frequently invoked"); ALLEN, supra note 12, at 35 (referring to the "medical model" of sentencing). One anonymous prisoner wrote in 1911 that the theory of indeterminate sentencing prescribed that the offender should stay in prison, "until cured, just a person suffering from a physical disease or infection is sent to a hospital or asylum, to remain for such a period as may be necessary for his restoration to health." LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 160 (1993).
23. Professor Allen notes that "rehabilitation . . . seen as the exclusive justification of penal sanctions . . . was very nearly the stance of some exuberant American theorists in mid-twentieth century . . ." ALLEN, supra note 12, at 3; see also AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE 83 (1971) ("Despite [its] shortcomings the treatment approach receives nearly unanimous support from those working in the field of criminal justice, even the most progressive and humanitarian.").
24. For example, both the death penalty and life imprisonment were imposed throughout the period when the rehabilitative ideal dominated American sentencing, yet no one would seriously have argued that the purpose of either type of sentence was rehabilitation of the offender. See Adam Bedau, The Death Penalty in America: Yesterday and Today, 95 DICK. L. REV. 759, 762-64 (1991) (describing widespread use of death penalty in America throughout twentieth century for crimes including murder, armed robbery, rape, and kidnapping); see also Dane Archer et al., Homicide and the Death Penalty: A Cross-National Test of a Deterrence Hypothesis, 74 J. CRIM. L. & CRIMINOLOGY 991, 991-92 (1983) (attributing use of death penalty in part to disbelief in rehabilitation).
25. For example, both the death penalty and life imprisonment were imposed throughout the period when the rehabilitative ideal dominated American sentencing, yet no one would seriously have argued that the purpose of either type of sentence was rehabilitation of the offender. See Adam Bedau, The Death Penalty in America: Yesterday and Today, 95 DICK. L. REV. 759, 762-64 (1991) (describing widespread use of death penalty in America throughout twentieth century for crimes including murder, armed robbery, rape, and kidnapping); see also Dane Archer et al., Homicide and the Death Penalty: A Cross-National Test of a Deterrence Hypothesis, 74 J. CRIM. L. & CRIMINOLOGY 991, 991-92 (1983) (attributing use of death penalty in part to disbelief in rehabilitation).
26. "Individualized sentencing" was embraced as the philosophy of federal sentencing in Williams v. New York, 337 U.S. 241, 248 (1949) (referring to "[t]oday's philosophy of individualizing sentences"), and Burns v. United States, 287 U.S. 216, 220 (1932) ("It is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion.").
27. In the pre-Guidelines era, the district court had three options when imposing a sentence of imprisonment: (a) It could impose a sentence under 18 U.S.C. § 4205(a) (repealed 1984), in which case the defendant was obliged to serve one-third of his sentence before becoming eligible for parole; (b) Pursuant to 18 U.S.C. § 4205(b)(1) (1976) (repealed 1984), the court could impose a maximum term of imprisonment, but reduce the minimum term required before parole eligibility to less than one-third of the maximum sentence; (c) The court could fix a maximum term and specify that "the prisoner may be released on parole at such time as the [Parole] Commission may determine." 18 U.S.C. § 4205(b)(2) (repealed 1984). When the court imposed a minimum term under either 18 U.S.C. § 4205(a) or 18 U.S.C. § 4205(b) (1), the Parole Commission retained control over when the defendant would be released after he served the minimum and achieved parole eligibility. In the pre-Guidelines period, "federal courts normally sentenced adult offenders pursuant to" § 4205(a). United States v. Scroggins, 880 F.2d 1204, 1207 n.7 (11th Cir. 1989). There was one other factor at work in determining the actual sentence length of federal prisoners, a statutory entitlement to so-called "good time" credit of up to nearly one-third of the stated sentence. Before the enactment of the SRA, this entitlement was codified at 18 U.S.C. § 4161 (1948) (repealed 1984).
28. For a discussion of the historical development of parole in Europe and the United States, see TODD R. CLEAR & GEORGE F. COLE, AMERICAN CORRECTIONS 396-99 (2d ed. 1990); REID MONTGOMERY, JR. & STEVEN DILLINGHAM, PROBATION AND PAROLE IN PRACTICE 25-32 (1983) .
29. For a discussion of the historical development of parole in Europe and the United States, see TODD R. CLEAR & GEORGE F. COLE, AMERICAN CORRECTIONS 396-99 (2d ed. 1990); REID MONTGOMERY, JR. & STEVEN DILLINGHAM, PROBATION AND PAROLE IN PRACTICE 25-32 (1983) .
30. In 1910, Congress mandated that each federal prison have its own parole board, constituted of the superintendent of prisons of the Department of Justice, the warden, and the physician of each penitentiary. Act of June 25, 1910, ch. 387, 36 Stat. 819 (1910). The parole board of each prison had the discretionary power to release any prisoner who had served onethird of his original stated sentence if the board was satisfied that "there is a reasonable probability that [the prisoner] will live and remain at liberty without violating the laws," and that release "is not incompatible with the welfare of society." Id. § 3. The United States Board of Parole, which later became the United States Parole Commission, was created by Congress in 1930. DON M. GOTTFREDSON ET AL., GUIDELINES FOR PAROLE AND SENTENCING 2 (1978). The legal powers of the Parole Commission as it existed immediately before the adoption of the sentencing guidelines are set out at 18 U.S.C. §§ 4201-4218 (1976) (repealed 1984). For a general study of the operation of parole decision-making, see GOTTFREDSON ET AL., supra.
31. The creation of parole guidelines was mandated by 18 U.S.C. § 4203(a)(1) (1976) (repealed 1984). For a discussion of the federal parole guidelines and their operation, see GOTTFREDSON ET AL., supra note 19, at 22-37. See also Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 228-29 (1993) (discussing the genesis of the parole guidelines).
32. The breadth of the Parole Commission's discretion is indicated by the language of the statute, 18 U.S.C. § 4206(a) (1976) (repealed 1984), describing its power of parole: (a) If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines: (1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and (2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
33. See David Fisher, Fifth Amendment - Prosecutorial Discretion Not Absolute: Constitutional Limits on Decision Not to File Substantial Assistance Motions, 83 J. CRIM. L. & CRIMINOLOGY 744, 745 (1993) ("Prior to the passage of the Sentencing Reform Act, federal judges enjoyed extremely broad discretion in sentencing. A judge could impose any sentence she thought was proper as long as it did not exceed the statutory maximum."); Steven S. Nemerson, Coercive Sentencing, 64 MINN. L. REV. 669, 677 (1980) (referring to then-extant pre-Guidelines sentencing practices and noting that "the court's [sentencing] discretion remains quite broad under most modern statutes"); Stanley A. Weigel, The Sentencing Reform Act of 1984: A Practical Appraisal, 36 UCLA L. REV. 83, 89 (1988) (same).
34. See David Fisher, Fifth Amendment - Prosecutorial Discretion Not Absolute: Constitutional Limits on Decision Not to File Substantial Assistance Motions, 83 J. CRIM. L. & CRIMINOLOGY 744, 745 (1993) ("Prior to the passage of the Sentencing Reform Act, federal judges enjoyed extremely broad discretion in sentencing. A judge could impose any sentence she thought was proper as long as it did not exceed the statutory maximum."); Steven S. Nemerson, Coercive Sentencing, 64 MINN. L. REV. 669, 677 (1980) (referring to then-extant pre-Guidelines sentencing practices and noting that "the court's [sentencing] discretion remains quite broad under most modern statutes"); Stanley A. Weigel, The Sentencing Reform Act of 1984: A Practical Appraisal, 36 UCLA L. REV. 83, 89 (1988) (same).
35. See David Fisher, Fifth Amendment - Prosecutorial Discretion Not Absolute: Constitutional Limits on Decision Not to File Substantial Assistance Motions, 83 J. CRIM. L. & CRIMINOLOGY 744, 745 (1993) ("Prior to the passage of the Sentencing Reform Act, federal judges enjoyed extremely broad discretion in sentencing. A judge could impose any sentence she thought was proper as long as it did not exceed the statutory maximum."); Steven S. Nemerson, Coercive Sentencing, 64 MINN. L. REV. 669, 677 (1980) (referring to then-extant pre-Guidelines sentencing practices and noting that "the court's [sentencing] discretion remains quite broad under most modern statutes"); Stanley A. Weigel, The Sentencing Reform Act of 1984: A Practical Appraisal, 36 UCLA L. REV. 83, 89 (1988) (same).
36. For example, federal law prior to the enactment of the Sentencing Reform Act of 1984 provided that, as to "any offense not punishable by death or life imprisonment," the court was free to suspend the imposition of a sentence of incarceration and place the defendant on probation, so long as the judge was "satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby." 18 U.S.C. § 3651 (1948) (repealed 1984).
37. See 18 U.S.C. § 3661 (1948) ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); see also Williams v. New York, 337 U.S. 241, 249-50 (1949) (stating that due process allows the judge broad discretion as to the sources and types of information relied upon at sentencing).
38. FED. R. EVID. 1101(d)(3) (noting that Federal Rules of Evidence do not apply at sentencing). This rule was adopted in 1975 as part of the original Federal Rules of Evidence, and thus was in effect both before and after the creation of the Federal Sentencing Guidelines. See Pub. L. No. 93-595, § 3, 88 Stat. 1949 (1975); see also Williams, 337 U.S. at 250-51 (1949) (stating that due process does not require confrontation or cross-examination in sentencing or passing on probation).
39. See Koon v. United States, 518 U.S. 81, 96 (1996) ("Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal."); Dorszynski v. United States, 418 U.S. 424, 431 (1974) (reiterating "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end"); see also Solem v. Helm, 463 U.S. 277, 290 n.16 (1983) ("[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. . . ."); Herron v. United States, 551 F.2d 62, 64 (5th Cir. 1977) ("The severity of a sentence imposed within the statutory limits will not be reviewed."); United States v. Cavazos, 530 F.2d 4, 5 (5th Cir. 1976) (repeating the non-reviewable standard); Fisher, supra note 22, at 745 (noting that before the SRA, there was no appellate review of sentencing decisions); Stith & Koh, supra note 20, at 226 ("For over two hundred years, there was virtually no appellate review of the trial judge's discretion."). Although appellate courts lacked the power to review the length of sentences imposed by district courts, they retained some ability to review the process through which sentences were determined. The outer limits of the district court's discretion were set by concepts of due process. See, e.g., United States v. Tucker, 404 U.S. 443 (1972) (vacating on due process grounds a sentence that relied on prior uncounseled convictions); Townsend v. Burke, 334 U.S. 736, 740-41 (1948) (holding that a sentence based on erroneous factual information violated due process); United States v. Clements, 634 F.2d 183, 186 (5th Cir. 1981) (holding that the court would "not review the severity of a sentence imposed within statutory limits, but will carefully scrutinize the judicial process by which the punishment was imposed"); United States v. Espinoza, 481 F.2d 553, 558 (5th Cir. 1973) ("[The] discretion [of sentencing judges] is not, and has never been absolute, and while the appellate courts have little if any power to review substantively the length of sentences, it is our duty to insure [sic] that rudimentary notions of fairness are observed in the process at which the sentence is determined." (citation omitted)).
40. See GRISET, supra note 13, at 1 (discussing the premises of the "rehabilitative regime" and noting that it rested on the assumptions that "case-by-case decisionmaking should be encouraged; that future behavior could be predicted; that criminal-justice practitioners possessed the expertise required to make individualized sentencing decisions").
41. "The indeterminate sentence . . . is expressive of the rehabilitation ideal: A convict will be released from an institution, not at the end of a fixed period, but when someone (a parole board, a sentencing board) decides he is 'ready' to be released." JAMES Q. WILSON, THINKING ABOUT CRIME 171 (1975).
42. For a discussion of how social scientists advising the Parole Commission designed and tested statistical models in order to generate predictions about the risk of recidivism for potential parolees, see GOTTFREDSON ET AL., supra note 19, at 41-67.
43. For a more complete discussion of the fall of the rehabilitative model and the rise of the Federal Sentencing Guidelines, see Frank O. Bowman, III, The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 WIS. L. REV. 679, 686-89 [hereinafter Bowman, Quality of Mercy].
44. See Barbara S. Barrett, Sentencing Guidelines: Recommendations for Sentencing Reform, 57 MO. L. REV. 1077, 1079 (noting that during the 1970s, "the perception that crime rates were out of control led some officials to demand surer and stiffer sanctions against criminals as a means of preventing crime").
45. See Andrew Von Hirsch, Recent Trends in American Criminal Sentencing Theory, 42 MD. L. REV. 6, 11 (1983) ("[N]o serious researcher has been able to claim that rehabilitation routinely could be made to work for the bulk of offenders coming before the courts."); Nemerson, supra note 22, at 685-86 ("In part, the massive professional and academic disillusionment with the therapeutic model stems from the simple practical inability of the criminal justice system to reform serious offenders effectively through incarceration."). See generally Michael Vitiello, Reconsidering Rehabilitation, 65 TUL. L. REV. 1011 (1991) (urging that rehabilitation be revisited as a dominant rationale for criminal sanctions).
46. See Andrew Von Hirsch, Recent Trends in American Criminal Sentencing Theory, 42 MD. L. REV. 6, 11 (1983) ("[N]o serious researcher has been able to claim that rehabilitation routinely could be made to work for the bulk of offenders coming before the courts."); Nemerson, supra note 22, at 685-86 ("In part, the massive professional and academic disillusionment with the therapeutic model stems from the simple practical inability of the criminal justice system to reform serious offenders effectively through incarceration."). See generally Michael Vitiello, Reconsidering Rehabilitation, 65 TUL. L. REV. 1011 (1991) (urging that rehabilitation be revisited as a dominant rationale for criminal sanctions).
47. One of the first and most influential critics of pre-Guidelines sentencing on the ground of unjustifiable sentence disparity was Judge Marvin E. Frankel. He said of the indeterminate sentencing system in the federal courts that, "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) [hereinafter FRANKEL, CRIMINAL SENTENCES]; see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972) (finding sentencing disparity to be pervasive); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967) (same); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142 (1973) (same); Peter B. Hoffman & Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW & PSYCHOL. REV. 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of "unwarranted sentencing disparity"). Peter Hoffman later became the principal draftsman of the Federal Sentencing Guidelines.
48. One of the first and most influential critics of pre-Guidelines sentencing on the ground of unjustifiable sentence disparity was Judge Marvin E. Frankel. He said of the indeterminate sentencing system in the federal courts that, "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) [hereinafter FRANKEL, CRIMINAL SENTENCES]; see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972) (finding sentencing disparity to be pervasive); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967) (same); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142 (1973) (same); Peter B. Hoffman & Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW & PSYCHOL. REV. 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of "unwarranted sentencing disparity"). Peter Hoffman later became the principal draftsman of the Federal Sentencing Guidelines.
49. One of the first and most influential critics of pre-Guidelines sentencing on the ground of unjustifiable sentence disparity was Judge Marvin E. Frankel. He said of the indeterminate sentencing system in the federal courts that, "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) [hereinafter FRANKEL, CRIMINAL SENTENCES]; see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972) (finding sentencing disparity to be pervasive); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967) (same); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142 (1973) (same); Peter B. Hoffman & Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW & PSYCHOL. REV. 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of "unwarranted sentencing disparity"). Peter Hoffman later became the principal draftsman of the Federal Sentencing Guidelines.
50. One of the first and most influential critics of pre-Guidelines sentencing on the ground of unjustifiable sentence disparity was Judge Marvin E. Frankel. He said of the indeterminate sentencing system in the federal courts that, "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) [hereinafter FRANKEL, CRIMINAL SENTENCES]; see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972) (finding sentencing disparity to be pervasive); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967) (same); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142 (1973) (same); Peter B. Hoffman & Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW & PSYCHOL. REV. 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of "unwarranted sentencing disparity"). Peter Hoffman later became the principal draftsman of the Federal Sentencing Guidelines.
51. One of the first and most influential critics of pre-Guidelines sentencing on the ground of unjustifiable sentence disparity was Judge Marvin E. Frankel. He said of the indeterminate sentencing system in the federal courts that, "the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 5 (1973) [hereinafter FRANKEL, CRIMINAL SENTENCES]; see also Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1 (1972) (finding sentencing disparity to be pervasive); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967) (same); NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS 142 (1973) (same); Peter B. Hoffman & Barbara Stone-Meierhoefer, Application of Guidelines to Sentencing, 3 LAW & PSYCHOL. REV. 53, 53-56 (1977) (describing criticisms of then-extant sentencing practices on the ground of "unwarranted sentencing disparity"). Peter Hoffman later became the principal draftsman of the Federal Sentencing Guidelines.
52. Probably the best historical description of the genesis of the SRA and the Guidelines is Stith & Koh, supra note 20, passim.
53. U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) (2000).
54. U.S.S.G. ch. 5, pt. A (2000).
55. U.S.S.G., eh. 5, pt. A (2000). By statute, the top end of the range can be no more than 25% higher than the bottom end. 28 U.S.C. § 994(b)(2) (1984); U.S.S.G. ch. 1, pt. A (2000). For discussion of the "25% rule," see Bowman, Quality of Mercy, supra note 30, at 691 n.49, 712-13.
56. See U.S.S.G. ch. 4 (2000), for the rules regarding calculation of criminal history category. The basic unit of measurement in this calculation is prior sentences imposed for misdemeanors and felonies.
57. U.S.S.G. § 2F1.1(a) (2000).
58. U.S.S.G. § 2B1.1(b)(1) (2000) (reflecting an increase in offense level of two for a theft of $1,000 and increase of thirteen for a theft of $1,000,000).
59. The amount of the "loss" is not the only specific offense characteristic for fraud offenses. Section 2F1.1 also provides adjustments for the specific offense characteristics of "more than minimal planning," U.S.S.G. § 2F1.1(b)(2) (2000), the use of "sophisticated means" to commit the fraud, U.S.S.G. § 2F1.1(b)(6) (2000), jeopardizing the soundness of a financial institution, U.S.S.G. § 2F1.1(b)(8) (2000), and other factors.
60. U.S.S.G. § 3B1.1 (2000). The defendant's offense level can be enhanced by either two, three, or four levels depending on the degree of control he exercised over the criminal enterprise and on the size of that enterprise.
61. U.S.S.G. § 3C1.1 (2000). Obstruction of justice includes conduct such as threatening witnesses, suborning perjury, producing false exculpatory documents, destroying evidence, and failing to appear as ordered for trial. See U.S.S.G. § 3C1.1, cmt. n.4 (2000) (listing examples of such conduct).
62. U.S.S.G. § 3A1.2 (2000).
63. See U.S.S.G. § 3A1.1 (2000) (creating an enhancement where a victim was selected based on "race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation" and in the case of a victim "unusually vulnerable due to age, physical or mental condition").
64. U.S.S.G. ch. 3, pt. D (2000).
65. See U.S.S.G. § 3B1.2 (2000) (allowing decreases in offense level of two or four levels if defendant found to be a "minor participant" or "minimal participant" in the criminal activity, or a decrease of three levels if the defendant's level of participation was between "minor" and "minimal").
66. See U.S.S.G. § 3E1.1 (2000) (allowing reduction of two offense levels where defendant "clearly demonstrates acceptance of responsibility," and three offense levels if otherwise applicable offense level is a least 16 and defendant has "assisted authorities in the investigation or prosecution of his own misconduct" by taking certain steps). Despite the euphemism "acceptance of responsibility," §3E1.1 is nothing more nor less than an institutionalized incentive for guilty pleas. Id.
67. U.S.S.G. § 1IB1.3 (2000). For a thorough discussion of the relevant conduct concept, see ROGER W. HAINES, JR., FRANK O. BOWMAN, III & JENNIFER C. WOLL, FEDERAL SENTENCING GUIDELINES HANDBOOK 102-19 (2000).
68. See U.S.S.G. § 1B1.3(a)(1)(B) (2000) (including the "reasonably foreseeable acts and omissions" resulting from jointly undertaken criminal activity in the "relevant conduct" inquiry).
69. U.S.S.G. § 1B1.3(a)(2) (2000).
70. A judge may consider acquitted conduct if the government proves its occurrence at sentencing by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 149 (1997) (finding that a sentencing court is not barred from considering acquitted conduct by the jury's verdict because the burden of proof at the sentencing is preponderance of evidence, rather than the trial standard of beyond a reasonable doubt).
71. See William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495, 500 (1990) ("[Sentencing guidelines . . . have significantly decreased the impact of charge selection and charge bargaining."). For further discussion of the use of charge bargaining to circumvent Guidelines rules, see infra notes 307-25 and accompanying text.
72. See U.S.S.G. § 5C1.1(a) (2000) ("A sentence conforms with the guidelines for imprisonment if it is within the minimum and maximum terms of the applicable guideline range.").
73. See U.S.S.G. ch. 5, pt. K (2000) (detailing the approved grounds for upward or downward departure).
74. This language appears in the Guidelines' enabling legislation, 18 U.S.C. § 3553(b) (2000), and is repeated in the Guidelines themselves, U.S.S.G. § 5K2.0 (2000).
75. Chapter 5, Part H of the Guidelines lists factors the Commission determined to be "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." These include age, § 5H1.1; educational and vocational skills, § 5H1.2; mental and emotional conditions, § 5H1.3; physical condition, § 5H1.4; history of substance abuse, § 5H1.4; employment record, § 5H1.5; family or community ties, § 5H1.6; socio-economic status, § 5H1.10; military record, § 5H1.11; history of charitable good works, § 5H1.11; and "lack of guidance as a youth," § 5H1.12. In theory, most of these factors nonetheless can justify a departure, but such a departure is permissible only where the excluded factor is present to such an unusual degree that the Commission would not have anticipated its impact and thus did not "adequately [take it] into consideration" when formulating the guidelines. 18 U.S.C. § 3553(b) (2000).
76. See 18 U.S.C. § 3624(b) (2000) (discussing the maximum number of days credit for good behavior).
77. See Paul J. Hofer & Courtney Semisch, Examining Changes in Federal Sentencing Severity: 1980-1998, 12 FED. SENT. REP. 12, 13 (1999) (stating that there is a thirteen percent reduction for good time under the SRA).
78. See Stith & Koh, supra note 20, at 225 (showing, chronologically, Senators Kennedy and Thurmond, individually and jointly, repeatedly introducing criminal law reform bills, including provisions for sentencing reform: in 1975 (Kennedy); 1977 (Kennedy and Sen. McClellan); 1979 (Kennedy and Thurmond); 1981 (Kennedy and Thurmond); 1982 (Thurmond and Sen. Biden co-sponsor criminal justice reform bill with Kennedy sentencing reform provisions)); see also, Editorial, The House Cop-Out on Crime, N.Y. TIMES, May 17, 1978, at A22 (castigating the House of Representatives for rejecting an early Kennedy-Thurmond criminal law reform package, and impliedly endorsing "political settlements of the kind that were worked out by such divergent Senators as Kennedy and Thurmond").
79. Pub. L. No. 99-570.
80. 21 U.S.C. § 841(b)(1)(A)(i) (1994).
81. 21 U.S.C. § 841(b)(1)(A)(viii) (1994).
82. Compare 21 U.S.C. § 841(b)(1)(B)(ii) (1994) (imposing minimum mandatory five-year sentence for possession with intent to distribute 500 grams of a "mixture or substance containing a detectable amount of" cocaine) with 21 U.S.C. § 841(b) (1) (B) (iii) (1994) (imposing minimum mandatory five-year sentence for possession with intent to distribute 5 grams of a "mixture or substance" containing "cocaine base [crack]"). Criticism of the crack-powder imbalance has been sustained and withering. See, e.g., Judge John S. Martin, Jr. et al., 1997 Statement on Powder and Crack Cocaine to the Senate and House Judiciary Committees, 10 FED. SENT. REP. 194, 194-95 (1998) (letter signed by twenty-seven federal judges stating that the crack/powder sentencing disparity "can not be justified and results in sentences that are unjust and do not serve society's interests"). It has not, as yet, produced any change in the law. And some prominent proposals for reducing the disparity would increase the penalties for powder by lowering the required threshold amounts of powder triggering minimum mandatory sentences, rather than decreasing the penalties for crack by raising the required amounts of crack. See, e.g., Editorial, Cocaine Sentences: Level the Field, L.A. TIMES, Dec. 2, 1999, available at 1999 WL 26201418 (describing and decrying a proposal by Sen. Orrin Hatch (R-Utah) to reduce the crack-powder disparity by reducing the amount of powder cocaine necessary to trigger a five- year minimum mandatory sentence from five hundred grams to fifty grams).
83. Compare 21 U.S.C. § 841(b)(1)(B)(ii) (1994) (imposing minimum mandatory five-year sentence for possession with intent to distribute 500 grams of a "mixture or substance containing a detectable amount of" cocaine) with 21 U.S.C. § 841(b) (1) (B) (iii) (1994) (imposing minimum mandatory five-year sentence for possession with intent to distribute 5 grams of a "mixture or substance" containing "cocaine base [crack]"). Criticism of the crack- powder imbalance has been sustained and withering. See, e.g., Judge John S. Martin, Jr. et al., 1997 Statement on Powder and Crack Cocaine to the Senate and House Judiciary Committees, 10 FED. SENT. REP. 194, 194-95 (1998) (letter signed by twenty-seven federal judges stating that the crack/powder sentencing disparity "can not be justified and results in sentences that are unjust and do not serve society's interests"). It has not, as yet, produced any change in the law. And some prominent proposals for reducing the disparity would increase the penalties for powder by lowering the required threshold amounts of powder triggering minimum mandatory sentences, rather than decreasing the penalties for crack by raising the required amounts of crack. See, e.g., Editorial, Cocaine Sentences: Level the Field, L.A. TIMES, Dec. 2, 1999, available at 1999 WL 26201418 (describing and decrying a proposal by Sen. Orrin Hatch (R-Utah) to reduce the crack-powder disparity by reducing the amount of powder cocaine necessary to trigger a five-year minimum mandatory sentence from five hundred grams to fifty grams).
84. The other notable exception to the original Sentencing Commission's effort to make Guidelines sentences mirror past sentencing practice was white collar crime. See Frank O. Bowman, III, Coping With "Loss": A Re-Examination of Sentencing Federal Economic Crimes Under the Guidelines, 51 VAND. L. REV. 461, 483-84 (1998) [hereinafter Bowman, Coping with Loss], for a discussion of the Sentencing Commission's decision to increase economic crime penalties over historical levels.
85. U.S.S.G. ch. 1, pt. A, § 3 (2000) (describing the Commission's "empirical" and historical approach to setting sentencing levels). Some scholars have questioned the Commission's claim that the Guidelines correspond very closely to empirical historical data, even in those classes of cases in which the Commission did not avowedly raise sentences over historical norms. See Miller & Wright, supra note 1, at 756-66.
86. In its Introduction to the Guidelines, the original Commission wrote: The Commission did not simply copy estimates of pre-guidelines practice as revealed by the data, even though establishing offense values on this basis would help eliminate disparity because the data represent averages. Rather, it departed from the data at different points for various important reasons. Congressional statutes, for example, suggested or required departure, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences. U.S.S.G. ch. 1, pt. A, § 3 (2000). Likewise, in its Chapter One Policy Statement devoted to "The Guidelines' Resolution of Major Issues," the Commission found that the ADAA's mandate to increase drug sentences was so clear that it trumped the SRA's admonition to consider the impact of guidelines sentences on prison populations, 28 U.S.C. § 994(h) (1994). Said the Commission: The Commission has also examined its sentencing ranges in light of their likely impact upon prison population. Specific legislation, such as the Anti- Drug Abuse Act of 1986 . . . , required the Commission to promulgate guidelines that will lead to substantial prison population increases. These increases will occur irrespective of the guidelines. The guidelines themselves, insofar as they reflect policy decisions made by the Commission (rather than legislated mandatory minimum or career offender sentences), are projected to lead to an increase in prison population that computer models, produced by the Commission and the Bureau of Prisons in 1987, estimated at approximately 10 percent over a period often years. U.S.S.G. ch. 1, pt. A, § 4(g) (2000). For a discussion of the evolution of the statutory language in the SRA regarding prison capacity, see Stith & Koh, supra note 20, at 266-68.
87. 21 U.S.C. § 841(b)(1)(B)(ii)(I) (1994).
88. The base offense level for at least five hundred grams, but less than two kilograms of powder cocaine is 26. U.S.S.G. § 2D1.1(c)(7) (2000). For a defendant with no prior criminal history, the sentencing range at Offense Level 26 is 63-78 months. U.S.S.G. § 5A (2000).
89. 21 U.S.C. § 841(b)(1)(B) (1994).
90. In its background notes to the drug guideline, the Commission commented: The base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute, and apply to all unlawful trafficking. Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses. To determine these finer distinctions, the Commission consulted numerous experts and practitioners, including authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity of these distinctions. Where necessary, this scheme has been modified in response to specific congressional directives to the Commission. U.S.S.G. § 2D1.1, cmt. background (2000) (emphasis added).
91. See U.S.S.G. § 2D1.1(c)(1) (2000) (setting an Offense Level of 38 for drug offenses involving, e.g., more than 150 kilograms of cocaine); U.S.S.G. § 5A (2000) (providing a Sentencing Table that prescribes a sentencing range of 235-293 months for defendant with Offense Level 38 and a Criminal History Category of I).
92. Compare 21 U.S.C. § 841(b) (1994) (setting minimum mandatory terms of ten years for drug offenses involving five kilograms of cocaine, one kilogram of heroin, and fifty grams of crack, and setting minimum mandatory terms of five years for drug offenses involving five hundred grams of cocaine, one hundred grams of heroin, and five grams of crack), with U.S.S.G. § 2D1.1(c) (2000) (specifying base offense levels from 6 to 38, and maintaining throughout the identical 100-to-20-to-1 cocaine-to-heroin-to-crack quantity ratio found in 21 U.S.C. § 841(b)).
93. See Michael Tonry, Salvaging the Sentencing Guidelines in Seven Easy Steps, 10 FED. SENT. REP. 51, 51-55 (1997) (arguing that the Sentencing Guidelines could have been fashioned in a more moderate way that would reduce sentencing disparities).
94. Barbara Meierhoefer, The Severity of Drug Sentences: A Result of Purpose or Chance?, 12 FED. SENT. REP. 34, 34 (1999) (citing data from Federal Bureau of Prisons); see also Eric Simon, The Impact of Drug-Law Sentencing on the Federal Prison Population, 6 FED. SENT. REP. 29, 29-30 (1993) (using the Bureau of Prisons computer model to show that drug sentencing accounted for the vast majority of the growth of federal prison populations experienced by 1993).
95. Barbara Meierhoefer, The Severity of Drug Sentences: A Result of Purpose or Chance?, 12 FED. SENT. REP. 34, 34 (1999) (citing data from Federal Bureau of Prisons); see also Eric Simon, The Impact of Drug-Law Sentencing on the Federal Prison Population, 6 FED. SENT. REP. 29, 29-30 (1993) (using the Bureau of Prisons computer model to show that drug sentencing accounted for the vast majority of the growth of federal prison populations experienced by 1993).
96. Meierhoefer, supra note 75, at 34.
97. Id.
98. 1999 SOURCEBOOK, supra note 5, at 28 tbl.12. The Sentencing Commission reported that, in 1999, 21,862 persons were sentenced for drug trafficking offenses, 395 were sentenced for drug offenses involving a communication facility, and 671 were sentenced for simple possession. Id. Within these groups, 475 drug trafficking defendants, 23 communication facility defendants, and 361 simple possession defendants received a straight nonincarcerative probationary sentence. Id. The drop-off in straight probationary sentences was not limited to drug crimes. In 1988, the fiscal year in which the Guidelines were implemented, the use of probation for all types of crime was cut by over half. Hofer & Semisch, supra note 59, at 15. For white collar crimes, between 1984 and 1991, straight probation declined from over 50% of all cases to roughly 25%. Id. at 15 fig.4. In 1999, 25.5% of all defendants convicted of larceny, fraud, embezzlement, counterfeiting, or forgery were sentenced to straight probation. 1999 SOURCEBOOK, supra note 5, at 28 tbl.12.
99. Hofer & Semisch, supra note 59, at 16 fig.7. Hofer and Semisch chart the nominal sentences of felony drug offenders from 1984 through 1990 using data from both the Administrative Office of the Courts (AO) and the Federal Probation Sentencing and Supervision Information System (FPSSIS). The AO and FPSSIS figures correspond closely for the period 1984 to 1990. Id.
100. See id. at 13-14, 18-19 nn.7, 10, 11 (discussing differences between the methods employed by Hofer and Semisch to calculate prison time actually served and the method of researchers at the Bureau of Justice Statistics).
101. WILLIAM J. SABOL & JOHN MCGREADY, TIME SERVED IN PRISON BY FEDERAL OFFENDERS, 1986-97, at 5 (Bureau of Justice Statistics, Special Report, NCJ 171682, 1999).
102. These figures are drawn from the statistics underlying the chart in Hofer & Semisch, supra note 59, at 16 fig.7. The expected sentence for 1984 is a FPSSIS statistic. The expected sentence data for 1992 was calculated by the U.S. Sentencing Commission. E-mail from Courtney Semisch, U.S. Sentencing Comm'n, to Frank Bowman, Professor of Law, School of Law Indianopolis (May 24, 2000) (on file with authors). Bureau of Justice Statistics figures for the period 1986 to 1992 show a similar, though smaller, increase in real sentences for drug offenders, from 29.7 months in 1986 to 62.7 months in 1992. SABOL & MCGREADY, supra note 81, at 5 tbl.2 (BJS statistics reported in the Sabol and McGready study do not go back to 1984).
103. Hofer & Semisch, supra note 59, at 17.
104. The average imposed federal felony drug sentence in 1986 was around sixty months. Id. at 16 fig.7. In 1998, the average imposed federal drug trafficking sentence was 76.2 months. The average time actually served on a federal felony drug sentence in 1986 was roughly thirty months. Id. In 1998, the average time expected to be served on a federal felony drug sentence was about 66 months. Id. The 1998 expected term figure of sixty-six months can also be derived by multiplying the average drug trafficking sentence reported by the U.S. Sentencing Commission, 76.2 months, U.S. SENTENCING COMM'N, 1998 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 29 tbl.13 (1999) [hereinafter 1998 SOURCEBOOK], by 87%, the percentage of a sentence required to be served by the SRA. See Hofer & Semisch, supra note 59, at 13-14 (endorsing this method for calculating actual time to be served under the new law).
105. TRAC study, supra note 3, at http://trac.syr.edu/tracdea/findings/aboutDEA/ newfindings.html (last visited Feb. 23, 2001). The very high average imposed drug sentence reported by the AO for 1991 appears to be something of an anomaly. It is not matched by statistics from either the Sentencing Commission or the Bureau of Justice Statistics. Hofer and Semisch say of it: "This spike in the AO data has defied our best efforts at explanation. It appears not only in average sentences for all cases, but also for separate offense types, as well as in plots of the total number of felony cases sentenced." Hofer & Semisch, supra note 59, at 19 n.13. However, even if one excludes 1991 from consideration, AO data nonetheless show a marked decline in average drug sentence imposed from 87.8 months in 1992 to 74.6 months in 1999.
106. TRAC study, supra note 3, at http://trac.syr.edu/tracdea/findings/aboutDEA/ newfindings.html (last visited Feb. 23, 2001).
107. Id.
108. See supra note 5 and accompanying text (describing this trend).
109. Hofer & Semisch, supra note 59, at 16 fig.7. The figures quoted above are drawn from the data underlying Figure 7 in the Hofer & Semisch article; the data was provided by Courtney Semisch and is on file with the authors.
110. 1995 U.S. SENTENCING COMM'N, ANN. REP. 43 tbl.10 (1996) [hereinafter 1995 ANNUAL REPORT] (reporting a total of 15,288 sentenced drug defendants in FY 1995).
111. 1999 SOURCEBOOK, supra note 5, at 12 tbl.3 (reporting a total of 23,082 sentenced drug defendants in FY 1999).
112. It must be noted that one other study of federal drug sentences, conducted by two researchers at the Urban Institute under contract with the Bureau of Justice Statistics, does not reflect a decrease in "real" drug sentences between 1991-92 and 1997. Rather, the BJS study, which relied on data from the Federal Bureau of Prisons, shows an increase in average real sentences for drug offenders from 61.0 months in 1991 to 69.4 months in 1996, with a decrease to 66.2 months in 1997. SABOL & MCGREADY, supra note 81, at 5 tbl.2. We are unable to entirely explain the conflict between the results of Sabol and McGready and those of Hofer and Semisch, and the apparent inconsistency between Sabol and McGready and figures generated by the Sentencing Commission and the AO. Some part of the explanation may lie in Sabol and McGready's method of computing what they call "average time to be served by offenders entering Federal prison." Id. They write: "Time to be served" is the amount of time that offenders who enter prison on a U.S. district court commitment in given year serve before their first release from prison. Time to be served by offenders entering Federal prison is based on a combination of actual data on time served for offenders who were also released during the study period and estimates of time to be served for those who had not been released. Id. at 3 (emphasis added). Using actual release dates for persons already released while using projected release dates for those still in prison would tend to shorten the average sentence of entering cohorts in earlier years by comparison with later years for several reasons. First, the projected release dates are calculated by taking the sentences imposed and reducing them by an estimated discount for good time credit. The figures for sentences imposed are, in turn, based on court documents showing the sentence imposed at a defendant's original sentencing. These documents do not account for sentence reductions based on substantial assistance to the government awarded after the original sentencing date pursuant to FED. R. CRIM P. 35(b), or for sentence reductions occurring as a result of remand from a court of appeals pursuant to FED. R. CRIM. P. 35(a). Id. at 5. Second, the Bureau of Prisons retains some limited administrative authority to grant early release to some prisoners. For example, 18 U.S.C. § 3621(e)(2)(B) permits a one-year reduction in sentence for prisoners who have successfully completed substance abuse treatment programs in prison. Sentence reductions under Rule 35, reductions of sentences following appeals, and any special administrative reductions would be reflected in actual release data but not in projected release figures. More importantly, more of such reductions would be reflected in the release data for early years because more persons entering prison in those years would have
113. 518 U.S. 81 (1996).
114. See supra notes 87-88 and accompanying text (relating that sentence lenghts peaked in 1992 and have declined ever since).
115. In so-called "historical" narcotics cases, that is, cases based on past events that come to the attention of authorities after the fact through informant information, financial investigations, or otherwise, there is by definition a gap between commission of the offense and commencement of the investigation, which can range from days to years. Even in drug cases arising from the direct involvement of undercover government agents in the purchase or sale of narcotics, weeks or months may pass between the criminal conduct and closure of the investigation by arrest. Even in a "reactive" drug case-one in which the police observe a narcotics transaction in progress and make immediate arrests-the period between arrest, disposition of the case by trial or plea, and the final sentencing can be many months. For example, in 1999, the median time from indictment to disposition of a federal criminal case was 5.9 months. LEONIDAS RALPH MECHAM, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 1999 ANNUAL REPORT OF THE DIRECTOR 229 tbl.D-6 (2000), available at http://www.uscourts. gov/judbus1999/index.html. In 1999, the median time from conviction to sentencing for defendants convicted in federal district court was eighty-nine days. Id. at 234 tbl.D-12. Thus, in 1999, the average time between indictment and sentencing was nearly nine months.
116. All the statutory changes in federal drug sentences since 1988 have involved penalty increases. See 21 U.S.C. §§ 841-861 (Supp. I 2000). Several of these amendments have lengthened terms of imprisonment directly. See Comprehensive Methamphetamine Contol Act of 1996, Pub. L. No. 104-237, 110 Stat. 3099 (amending 21 U.S.C. § 841(d) (1996)) (increasing the sentence of ten years to twenty years for violations involving possession or distribution of listed chemicals with an intent to manufacture controlled substances); Anti-Drug Abuse Act of 1998, Pub. L. No. 100-690, 102 Stat. 4181 (amending 21 U.S.C. § 844(a) (1988)) (increasing the penalties in crack possession offenses, subjecting offenders to terms of imprisonment of not less than five years or more than twenty years); id. (amending 21 U.S.C. § 848(a) (1988)) (increasing the minimum terms of imprisonment for first violations of continuing criminal enterprise from ten years to twenty years, and for subsequent violations from twenty years to thirty years); id. (amending 21 U.S.C. § 841(b)(1)(A) (1988)) (providing that any person convicted of manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense a controlled substance "after two or more prior convictions for a felony drug offense have become final, . . . shall be sentenced to a mandatory term of life imprisonment without release. . . "). Other changes have decreased the amount of controlled substances necessary to impose particular sentences. See Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681 (amending 21 U.S.C. § 841(b)(1)(A)(viii), (B)(viii) (Supp. 1998)) (reducing the amount of methamphetamine used in manufacturing or distribution necessary for not less than ten years imprisonment from one hundred grams to fifty grams, and for a substance containing methampbetamine from one kilogram to five hundred grams, along with reducing the amount necessary for not less than five years imprisonment from ten grams to five grams and one hundred grams to fifty grams for a substance containing methamphetamine); Anti-Drug Abuse Act of 1998, Pub. L. No. 100-690, 102 Stat. 4181 (amending 21 U.S.C. § 841(b)(1)(D) (1988)) (lowering the requirement of one hundred or more marijuana plants to fifty or more plants for a sentence of not more than five years imprisonment). Lastly, other amendments added specific chemicals or entire penalty sections to the statutes addressing drug violations. See Drug-Induced Rape Prevention and Punishment Act of 1996, Pub. L. No. 104-305, 110 Stat. 3807 (amending 21 U.S.C. § 844(a) (1996)) (adding the provision that any person convicted of possessing flunitrazepam shall be imprisoned for not more than three years); Date-Rape Drug Prohibition Act of 2000, Pub. L. No. 106-172, 114 Stat. 7 (amending 21 U.S.C. § 841(b)(1)(C) (Supp. 2000)) (adding the chemical gamma hydroxybutyric acid to the statute which specifies a penalty of not more than twenty years imprisonment for the manufacture or distribution of listed controlled substances); see also Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (amending 21 U.S.C. § 849 (Supp. 1994)) (creating a penalty of twice the maximum imprisonment authorized by § 841 for distributing a controlled substance or possessing with intent to distribute within one thousand feet of a rest stop); Anti-Drug Act of 1998, Pub. L. No. 100-690, 102 Stat. 4181 (amending 21 U.S.C. § 858 (1988)) (adding a provision that the penalty for endangering human life while manufacturing or transporting a controlled substance is a term of imprisonment of not more than ten years).
117. One senior district court judge has argued that the "safety valve" is "a first step toward eliminating the monumental error of mandatory minimums as an anti-crime weapon." Vincent L. Broderick, Flexible Sentencing and the Violent Crime Control Act of 1994, 7 FED. SENT. REP. 128 (1994).
118. The full text of the statutory safety valve provision, 18 U.S.C. § 3553(f), reads as follows: Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. §§ 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. §§ 961, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that -(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f) (1994).
119. Section 80001(c) of Pub. L. No. 103-322, 108 Stat.1796 provided that: "The amendment made by subsection (a) [enacting subsec. (f) of this section] shall apply to all sentences imposed on or after the 10th day beginning after the date of enactment of this Act [Sept. 13, 1994]." 18 U.S.C § 3553 note (1994) (Effective Date of 1994 Amendment).
120. See United States v. Sanchez, 81 F.3d 9, 12 (1st Cir. 1996) (concluding that the amendment is not retroactive); Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (same); United States v. Rodriguez-Lopez, 63 F.3d 892, 893 (9th Cir. 1995) (same). But see United States v. Clark, 110 F.3d 15, 18 (6th Cir. 1997) (holding that safety valve applies to cases that were pending on appeal on September 23, 1994).
121. U.S.S.G. § 2D1.1(b)(4) (1995). The section has subsequently been rearranged so that subsection (b)(4) is now subsection (b)(6). U.S.S.G. § 2D1.1(b)(6) (2000). The Sentencing Commission is presently considering eliminating the requirement of a minimum base offense level of 26 as a prerequisite for safety valve eligibility.
122. United States v. Osei, 107 F.3d 101, 104 (2d Cir. 1997); United States v. Mertilus, 111 F.3d 870, 873-74 (11th Cir. 1997).
123. The timing of the adoption of the statutory safety valve allows an unusually accurate estimate of its overall effect on average drug sentences in the following year. The statutory safety valve became effective on September 23, 1994, and applied to every drug case sentenced on or after that date, regardless of when the conduct or the conviction occurred. Moreover, the effective date fell exactly one week before the commencement of FY 1995 on October 1, 1994. Both the AO and the Commission prepare their statistical reports based on the fiscal year calendar. See, e.g., 1995 ANNUAL REPORT, supra note 90, at xvi ("This annual report covers fiscal year 1995 (October 1, 1994, through September 30, 1995)."); MECHAM, supra note 95, at 14 (noting that data in the Annual Report of the Director of the AO is collected by fiscal year). Consequently, only one week's worth of cases reported in the 1994 figures by either agency would have been sentenced under the statutory safety valve, whereas all of the 1995 cases were subject to it.
124. Telephone conversation with Lou Reedt, U.S. Sentencing Commission (July 2000) (data derived from U.S. Sentencing Commission datafile MONFY 1995).
125. TRAC study, supra note 3, at http://trac.syr.edu/tracdea/fmdings/aboutDEA/ newfindings.html (last visited Feb. 23, 2001).
126. Id.
127. U.S. SENTENCING COMM'N, 1996 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 54 tbl.39 (1997) [hereinafter 1996 SOURCEBOOK], available at http://www.ussc.gov/ANNRPT/
128. 1996.
129. TRAC study, supra note 3, at http://trac.syr.edu/tracdea/findings/aboutDEA/ newfindings.html (lasted visited Feb. 23, 2001).
130. Id.
131. 1996 SOURCEBOOK, supra note 107, at 54 tbl.39.
132. U.S. SENTENCING COMM'N, 1997 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 79 tbl.44 (1998) [hereinafter 1997 SOURCEBOOK], available at http://www.ussc.gov/ANNRPT/ 1997.
133. 1998 SOURCEBOOK, supra note 84, at 79 tbl.44.
134. 1999 SOURCEBOOK, supra note 5, at 79 tbl.44.
135. Title 18 of the United States Code § 3553(f) states that the court "shall" impose a sentence within the guideline range notwithstanding the applicability of a mandatory minimum if the five criteria are met. 18 U.S.C. § 3553(f)(5) (Supp. 2000). Section 2D1.1(b)(6) states flatly that if the defendant meets the five criteria, the effect on the offense level is to "decrease by 2 levels."
136. 18 U.S.C. § 3553(f)(5) (Supp. 2000); U.S.S.G. § 5C1.2 cmt. n.3 (2000).
137. United States v. Flanagan, 80 F.3d 143, 146 (5th Cir. 1996) (reversing where the district court erroneously placed the burden of proof on the government); United States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996) (holding that the burden does not shift to the government to show that defendant's responses were not truthful or complete ; United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (providing that a defendant's bare assertion that she had provided all relevant information was insufficient for a preponderance of the evidence).
138. See United States v. Espinosa, 172 F.3d 795, 796 (11th Cir. 1999) (finding that the district court had independent responsibility to resolve the dispute between the government and the defendant about the truthfulness and completeness of his disclosure).
139. The discretionary character of the safety valve decision is further highlighted by a somewhat peculiar provision in both the statutory and guideline safety valve sections. The statute requires that the court not make a finding on safety valve eligibility until "after the Government has been afforded the opportunity to make a recommendation. . ." 18 U.S.C. § 3553(f). The Guidelines reiterate the statutory command: "Under 18 U.S.C. § 3553(f), prior to its determination, the court shall afford the government an opportunity to make a recommendation." U.S.S.G. § 5C1.2, cmt. n.8 (2000). The choice of the word "recommendation," rather than "presentation" or "evidentiary showing," implies the existence of some discretion on the part of the government and the court both in recommending and granting the safety valve adjustment. In addition, to qualify for the safety valve, a defendant must prove to the court that he was "not an organizer, leader, manager, or supervisor of others in the offense." 18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(4) (2000). What activities qualify a defendant for status as an organizer, leader, manager, or supervisor is a question open to considerable debate. See HAINES, BOWMAN & WOLL, supra note 49, at 754-57 (discussing cases interpreting Guidelines provisions for role adjustments in drug cases). Therefore, whether a defendant passes this particular hurdle on the path to safety valve relief will often depend on whether the prosecutor and the judge elect to take a generous view of the defendant's organizational role.
140. Infra Part IV.C.
141. U.S.S.G. § 3E1.1 (2000).
142. See supra note 48.
143. The acceptance of responsibility provision has been repeatedly upheld against claims that it represents an unconstitutional burden on the right to jury trial. See HAINES, BOWMAN & WOLL, supra note 49, at 856-57 (discussing constitutional challenges to the acceptance of responsibility guideline).
144. U.S.S.G. app. C, amend. 459 (2000) (amended November 1, 1992).
145. U.S.S.G. § 3E1.1(b) (2000).
146. 1993 ANNUAL REPORT, supra note 5, at 90 tbl.29. An additional 29.6% of drug trafficking offenders received the two-level acceptance reduction. Id. Thus, a total of 80.4% of drug trafficking offenders received some acceptance reduction in 1993. See also id. at 142 tbl.57 (giving more detailed breakdown of acceptance of responsibility reductions in drug cases during 1993).
147. U.S.S.G. ch. 5, pt. A (2000).
148. See 1993 ANNUAL REPORT, supra note 5, at 165 tbl.57 (showing that in 1993, 33.6% of all drug trafficking defendants received a substantial assistance departure, and an additional 7.7% received a non-substantial assistance downward departure). For further discussion of departure rates, see infra Part IV.B.2.b.
149. See United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997) (holding that the appellate court has no jurisdiction to review the extent of the substantial assistance departure); United States v. Correa, 995 F.2d 686, 687 (7th Cir. 1993) (holding that the court has no jurisdiction where refusal to depart is an exercise of discretion); United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1991) (same).
150. For example, in 1993, 42.4% of all drug trafficking defendants received a sentence in the bottom one-quarter of the applicable guideline range. 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67 (noting that 41% of all drug trafficking defendants received some form of downward departure and were sentenced below the otherwise applicable guideline range). Id.
151. See infra notes 239-47 and accompanying text.
152. 1993 ANNUAL REPORT, supra note 5, at 90 tbl.29.
153. 1999 SOURCEBOOK, supra note 5, at 76 tbl.41.
154. 1993 ANNUAL REPORT, supra note 5, at 90 tbl.29.
155. 1999 SOURCEBOOK, supra note 5, at 76 tbl.41.
156. U.S.S.G. app. C, amend. 505 (1998) (amended Nov. 1, 1994).
157. In 1993, the year before the top two levels of the Drug Quantity Table were eliminated, only 628 of all of the 42,107 defendants sentenced for any federal crime were sentenced at Offense Level 40 or higher. 1993 ANNUAL REPORT, supra note 5, at 97 tbl.32. The Commission did not publish offense level figures for drug defendants alone for 1993. When nondrug defendants are eliminated, and when one recognizes that even drug defendants ultimately sentenced at Offense Level 40 or higher will often have received upward adjustments for aggravating role, weapon possession, or the like, it is clear that the number of drug defendants who actually started with quantity-based offense levels of 40 or 42 was quite small. In 1994, 16,870 defendants were sentenced under U.S.S.G. ch. 2, pt. D (Drugs). 1994 U.S. SENTENCING COMM'N, ANN. REP. 116 tbl.54 n.1 (1995) [hereinafter 1994 ANNUAL REPORT]. Not only is the absolute number of cases potentially affected by this Guidelines change quite low, but the number of defendants within this already small category whose sentences would actually have been lowered is smaller still. The reductions occur at the very top of the Sentencing Table. Therefore, some defendants who were the beneficiaries of the reduction in quantity-based offense level will have been pushed right back up to the top of the Table by other, non-quantity-related factors such as role in the offense, weapon possession, or criminal history. Consider, for example, a first-time offender caught with 1500 kilograms of cocaine. Prior to the amendment, his base offense level would have been 42, with a sentencing range of 360 months to life, exclusive of any other consideration. After the amendment, his base offense level would be 38 (235-293 months). However, if he were found to be an organizer or leader of a crime involving five or more participants, he would receive an upward role adjustment of four levels under U.S.S.G. § 3B1.1(a). Before the 1994 amendment, his offense level would have capped at the Sentencing Table maximum of 43 (mandatory life imprisonment). After the amendment, the four-level role adjustment would put him at Level 42 (360 months to life). Similarly, if he had a significant criminal history, that fact alone could push the defendant back up into the 360 months to life range. See U.S.S.G. § 5A (displaying the Sentencing Table). The defendant's offense level would be increased a further two levels - and thus back up to the cap of Level 43 - if a gun was possessed during the offense, § 2D1.1(b)(1); if the drugs were imported on a non-commercial aircraft, § 2D1.1(b)(2)(A); if the defendant was an operations officer on any vessel used to import the drugs, § 2D1.1(b)(2)(B); if the drugs were to be distributed in a prison, § 2D1.1(b)(3); if the defendant abused a position of trust or used a special skill to commit the offense, § 3B1.3; or if the defendant obstructed justice, § 3C1.1. In short, some number of the defendants affected by the elimination of the top two quantity-based offense levels would be pushed back to the top of the chart by other factors.
158. Supra notes 102-05 and accompanying text.
159. Even if the percentage of high-quantity drug cases that would previously have received Level 40 or 42 quantity adjustments increased after 1995, this would not be reflected in any decrease in average imposed sentence relative to 1995.
160. See HAINES, BOWMAN & WOLL, supra note 49, at 368-69.
161. 21 U.S.C. § 841(b)(1)(B)(vii) (setting a minimum mandatory sentence of five years imprisonment for offenses involving one hundred kilograms or more of marijuana, or one hundred or more marijuana plants); id. § 841(b)(1)(A)(vii) (setting minimum mandatory sentence of ten years imprisonment for offenses involving one thousand kilograms or more of marijuana, or one thousandor more marijuana plants).
162. U.S.S.G. app. C, amend. 516 (1998) (amended Nov. 1, 1995) (adding Paragraph 4 of the "Background" to U.S.S.G. § 2D1.1)
163. See United States v. Marshall, 95 F.3d 700, 701 (8th Cir. 1996) (holding that the marijuana guideline amendment cannot lower a sentence below the mandatory minimum).
164. In 1994, the mean marijuana sentence was 46.5 months. 1994 ANNUAL REPORT, supra note 136, at 115 fig.K. In 1995, the mean marijuana sentence was 43.1 months. 1995 ANNUAL REPORT, supra note 90, at 110 fig.K. In 1996, the mean marijuana sentence was 42.1 months. 1996 SOURCEBOOK, supra note 107, at 56 fig.I.
165. U.S.S.G. app. C, amend. 484 (1998) (amended Nov. 1, 1993) (amending U.S.S.G. § 2D1.1 app. n.1, to state, inter alia, "Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.")
166. See United States v. Mahecha-Onofre, 936 F.2d 623, 624-25 (1st Cir. 1991) (holding that the suitcase/cocaine "mixture" or "substance" fits the statutory and Guidelines definitions).
167. U.S.S.G. app. C, amend. 503 (1998) (amended Nov. 1, 1994).
168. See, e.g., United States v. Phillips, 37 F.3d 1210, 1214-15 (7th Cir. 1994) (holding defendant responsible for amounts distributed by the conspiracy two months before he joined it because of his role in collecting debts for cocaine sold before he joined, and his "extensive dealings with two individuals" who joined the conspiracy before him); United States v. Mojica, 984 F.2d 1426, 1446 (7th Cir. 1993) (attributing earlier quantities to defendant who joined in the middle of conspiracy, but who was an experienced dealer who had associated with the conspirators for some time before joining conspiracy).
169. For example, one of us (Bowman), while an Assistant U.S. Attorney in Miami, Florida, tried a case in which cocaine was smuggled into the United States impregnated like starch into clothing carried in the luggage of an airline passenger. Although the case was heard before the 1993 amendment clarifying the point, the district court did not include the weight of the clothes in the drug amount used to sentence the defendant.
170. Several courts have addressed the issue of inclusion of nonconsumable components of a drug mixture. Compare United States v. Eastland, 989 F.2d 760, 767 (5th Cir. 1993) (including 104 pounds of lye water on the surface of which was phenylacetone), and United States v. Killion, 7 F.3d 927, 931-32 (10th Cir. 1993) (rejecting the argument that Chapman v. United States, 500 U.S. 453 (1991), excludes consideration of unusable by-products), and United States v. Walker, 960 F.2d 409, 412-13 (5th Cir. 1992) (including the weight of toxic liquid waste products), and United States v. Mahecha-Onofre, 936 F.2d 623, 626 (1st Cir. 1991) (including the weight of the cocaine with the material in which it was impregnated), with United States v. Palacios-Molina, 7 F.3d 49, 54 (5th Cir. 1993) (distinguishing the exclusion of liquid used to transport cocaine from the inclusion of by-products and precursors of methamphetamine); and United States v. Salgado-Molina, 967 F.2d 27, 28 (2d Cir. 1992) (excluding the weight of liqueur in a liqueur/cocaine mixture since the cocaine was not usable without a chemical extraction process), and United States v. Rodriguez, 975 F.2d 999, 1005 (3d Cir. 1992) (excluding boric acid packaged with cocaine), and United States v. Robins, 967 F.2d 1387, 1389 (9th Cir. 1992) (excluding 2,700 grams of cornmeal combined with 0.10 grams of cocaine to fool buyers), and United States v. Bristol, 964 F.2d 1088, 1090 (11th Cir. 1992) (excluding the weight of wine in a cocaine/wine mixture), and United States v. Jennings, 945 F.2d 129, 134-37 (6th Cir. 1991) (finding it was error to base weight on a batch of methamphetamine seized in the process of "cooking" and containing poisonous chemicals not intended for ingestion). Courts have also addressed the issue of inclusion of drugs distributed prior to joining a conspiracy. Compare Phillips, 37 F.3d at 1214-15 and Mojica, 984 F.2d at 1446 (including preenlistment drugs), with United States v. Perulena, 146 F.3d 1332, 1336 (11th Cir. 1998) (excluding a drug shipment imported eleven months before defendant joined conspiracy because it was beyond the scope of defendant's agreement with the other conspirators), and United States v. Carreon, 11 F.3d 1225, 1234-35 (5th Cir. 1994) (summarizing the conflict among the circuits), and United States v. Okayfor, 996 F.2d 116, 121-22 (6th Cir. 1993) (vacating and remanding for explicit specification of the evidence on which the district court relied to attribute the preparticipation quantities to defendant where district court had simply stated that a defendant is responsible for all of the quantities dealt in by his conspiracy), and United States v. Tolson, 988 F.2d 1494, 1495-96 (7th Cir. 1993) (finding that the defendant was only a peripheral participant early in the conspiracy, and then took a two-year hiatus before becoming heavily involved in the conspiracy's activities), and United States v. Edwards, 994 F.2d 417, 423 (8th Cir. 1993) (holding drugs were not attributable to defendant unless he was directly involved in the conspiracy at the time of their distribution), and United States v. Petty, 982 F.2d 1374, 1376 (9th Cir. 1993) (finding defendant could not have "foreseen" drugs distributed before he joined conspiracy), and United States v. O'Campo, 973 F.2d 1015, 1023 (1st Cir. 1992) (holding new entrant cannot be held responsible for earlier transactions just because he knew they took place), and United States v. Collado, 975 F.2d 985, 995-97 (3d Cir. 1992) (holding previously undertaken activity normally will not have been committed in furtherance of the activity defendant agrees to undertake), and United States v. Williams, 977 F.2d 866, 870 (4th Cir. 1992) (citing the argument that defendant had not joined conspiracy prior to certain activities).
171. Both the "mixture or substance" amendment to § 2D1.1 app. n.1 and the amendment regarding conspiratorial conduct would have applied immediately to all cases sentenced on or after their effective dates of November 1, 1993, and November 1, 1994, regardless of when the offense conduct occurred, because U.S.S.G. § 1B1.10 specifies that sentencing courts are to use the "[Guidelines Manual] in effect at the time the defendant was sentenced." U.S.S.G. § 1B1.10 (2000). Due to the operation of the Ex Post Facto Clause, this rule does not apply to amendments that increase sentences. See Miller v. Florida, 482 U.S. 423, 435-36 (1987) (holding the Ex Post Facto Clause barred applying retroactively an amendment to Florida state sentencing guidelines that increased a penalty); United States v. Harotunian, 920 F.2d 1040, 1046 (1st Cir. 1990) (holding the amendment to U.S.S.G. § 2B1.1(b), regarding embezzlement, could not be applied retroactively because it increased the penalty). However, the Ex Post Facto limitation would not apply to either of the amendments at issue here.
172. For a discussion of the chemical subtleties, see United States v. Carroll, 6 F.3d 735, 747-49 (11th Cir. 1993) (discussing the legal treatment of six chemical variations of methamphetamine).
173. U.S.S.G. app. C, amend. 517 (1998) (amended Nov. 1, 1995). For a general discussion of this sequence of amendments to the methamphetamine guidelines, see HAINES, BOWMAN & WOLL, supra note 49, at 361-64.
174. Comprehensive Methamphetamine Control Act, Pub. L. No. 104-237, § 301, 110 Stat. 3099 (1996).
175. U.S.S.G. app. C, amend. 555 (1998) (amended Nov. 1, 1997) (amending U.S.S.G. § 2D1.1(c), Drug Quantity Table). No change was made in the quantities of "methamphetamine (actual)," i.e., pure methamphetamine, that are associated with various offense levels and that trigger minimum mandatory sentences.
176. Comprehensive Methamphetamine Control Act, Pub. L. No. 104-237, §§ 302 & 303, 110 Stat. 3099 (1996). This amendment also raised the base offense level for methamphetamine offenses.
177. U.S.S.G. app. C, amend. 555 (1998) (amended Nov. 1, 1997) (amending U.S.S.G. § 2D1.1(b) to add subsection (4) increasing the methamphetamine trafficking offense level by two levels where methamphetamine or its precursor chemicals are imported and the defendant is not eligible for a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2).
178. Id. (amending U.S.S.G. § 2D1.1(b) to add subsection (4) increasing the methamphetamine trafficking offense level by two levels for environmental infractions).
179. U.S.S.G. app. C, amend. 541 (1998) (amended May 1, 1997), repromulgated as a nonemergency amendment effective November 1, 1997.
180. U.S.S.G. § 1B1.10 (1998).
181. See supra note 147 (citing decisions in which courts held defedants responsible for drug activities that occurred prior to their engagement in the conspiracy).
182. 1998 SOURCEBOOK, supra note 84, at 81 fig.J, with 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
183. 1998 SOURCEBOOK, supra note 84, at 81 fig.J, with 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
184. See 1999 SOURCEBOOK, supra note 5, at 83 fig.L (depicting decreases in drug types).
185. 488 U.S. 361 (1989).
186. See Edwards v. United States, 523 U.S. 511, 513-14 (1998) (relying on the relevant conduct section, § 1B1.3, in upholding a sentence based on the offense level for crack, even though the jury found a conspiracy to sell powder cocaine or crack).
187. See supra notes 49-53 and accompanying text (discussing the "relevant conduct" factor).
188. See, e.g., United States v. Bennett, 928 F.2d 1548 (11th Cir. 1991) (holding that § 1B1.3 is not an unconstitutional bill of attainder); United States v. Ebbole, 917 F.2d 1495 (7th Cir. 1990) (holding that the relevant conduct section does not offend due process).
189. 519 U.S. 148 (1997). In addition, all circuits agree that relevant conduct includes conduct outside the offense of conviction. HAINES, BOWMAN & WOLL, supra note 49, at 113 n.604.
190. See Wade v. United States, 504 U.S. 181, 185 (1992) (stating that both 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 give "the Government a power, not a duty, to file a motion when a defendant has substantially assisted"); Melendez v. United States, 518 U.S. 120, 129 (1996) (holding that a government motion under U.S.S.G. § 5K1.1 is not sufficient to make a defendant eligible for a departure below a statutory minimum mandatory sentence absent a separate government motion under 18 U.S.C. § 3553(e) (1994)). For further discussion of substantial assistance motions and the government monopoly on them, see Frank O. Bowman, III, Departing Is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Indiscipline, 29 STETSON L. REV. 7 (1999) [hereinafter Bowman, Departing] and Frank O. Bowman, III, Defending Substantial Assistance: An Old Prosecutor's Meditation on Singleton, Sealed Case, and the Maxfield-Kramer Report, 12 FED. SENT. REP. 45 (1999) [hereinafter Bowman, Defending Substantial Assistance].
191. See Wade v. United States, 504 U.S. 181, 185 (1992) (stating that both 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 give "the Government a power, not a duty, to file a motion when a defendant has substantially assisted"); Melendez v. United States, 518 U.S. 120, 129 (1996) (holding that a government motion under U.S.S.G. § 5K1.1 is not sufficient to make a defendant eligible for a departure below a statutory minimum mandatory sentence absent a separate government motion under 18 U.S.C. § 3553(e) (1994)). For further discussion of substantial assistance motions and the government monopoly on them, see Frank O. Bowman, III, Departing Is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Indiscipline, 29 STETSON L. REV. 7 (1999) [hereinafter Bowman, Departing] and Frank O. Bowman, III, Defending Substantial Assistance: An Old Prosecutor's Meditation on Singleton, Sealed Case, and the Maxfield-Kramer Report, 12 FED. SENT. REP. 45 (1999) [hereinafter Bowman, Defending Substantial Assistance].
192. Stinson v. United States, 508 U.S. 36, 47 (1992). The Supreme Court has also ruled on particular drug-related Guidelines provisions. See, e.g., Chapman v. United States, 500 U.S. 453, 468 (1991) (holding that 21 U.S.C. § 841(b)(1) (1994) requires that the "carrier medium" for drugs such as LSD (typically blotter paper or sugar cubes) must be included when determining the weight of the drug for purposes of determining a mandatory minimum sentence).
193. 501 U.S. 957 (1991).
194. Id. at 994.
195. See HAINES, BOWMAN & WOLL, supra note 49, at 20 n.51 (listing numerous cases rejecting Eighth Amendment cruel and unusual punishment challenges to federal drug sentences).
196. 18 U.S.C. § 924(c) (1994).
197. Id. Moreover, the twenty-year penalty applies even if the defendant suffers his second or subsequent § 924(c) conviction in the same trial as his first. Deal v. United States, 508 U.S. 129,137 (1993).
198. U.S.S.G. § 2D1.1(b)(1) (2000). Application Note 3 to § 2D1.1 goes on to state: "The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense."
199. U.S.S.G. § 2K2.4 app. n.2 (2000). See generally HAINES, BOWMAN & WOLL, supra note 49, at 588-91.
200. 516 U.S. 137 (1995).
201. Id. at 144.
202. For a listing of a representative sample of such cases, see HAINES, BOWMAN & WOLL, supra note 49, at 234 n.403.
203. Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998).
204. In Muscarello v. United States, 524 U.S. 125, 139 (1998), for example, the Supreme Court held that a gun is "carried" even if it is in a locked glove box or in the trunk of a car.
205. To muddy the picture even further, remember that, depending on the quantity of drugs involved in the case at issue, the difference in sentence represented by a two-level increase could range from four or five months to more than five years. See U.S.S.G. §§ 2D1.1(c) (Drug Quantity Table), 5A (Sentencing Table) (1998) (listing different offense levels corresponding with the quantities of controlled substances possessed by the convict, and the convict's criminal history, respectively).
206. 1995 ANNUAL REPORT, supra note 90, at 107 tbl.43.
207. 1996 SOURCEBOOK, supra note 107, at 50 tbl.34.
208. The percentage of cases in which a weapon was involved from 1997 through 1999 were: 12.3% in 1997, 1997 SOURCEBOOK, supra note 111, at 74 tbl.39; 12.1% in 1998, 1998 SOURCEBOOK, supra note 84, at 74 tbl.39; 12.2% in 1999, 1999 SOURCEBOOK, supra note 5, at 74 tbl.39.
209. The percentage of cases in which a weapon was involved from 1997 through 1999 were: 12.3% in 1997, 1997 SOURCEBOOK, supra note 111, at 74 tbl.39; 12.1% in 1998, 1998 SOURCEBOOK, supra note 84, at 74 tbl.39; 12.2% in 1999, 1999 SOURCEBOOK, supra note 5, at 74 tbl.39.
210. The percentage of cases in which a weapon was involved from 1997 through 1999 were: 12.3% in 1997, 1997 SOURCEBOOK, supra note 111, at 74 tbl.39; 12.1% in 1998, 1998 SOURCEBOOK, supra note 84, at 74 tbl.39; 12.2% in 1999, 1999 SOURCEBOOK, supra note 5, at 74 tbl.39.
211. Telephone interview by Frank O. Bowman, III with Louis W. Reedt, Acting Director of Policy Analysis, U.S. Sentencing Commission (June 2000).
212. Telephone interview by Frank O. Bowman, III with Louis W. Reedt, Acting Director of Policy Analysis, U.S. Sentencing Commission (May 2000).
213. This is so because: (1) the Guidelines Sentencing Table, U.S.S.G. § 5A (1998), is designed with overlapping ranges such that the top of each range is the bottom of the range two levels above it; and (2) the minimum width of a sentencing range is six months, while the maximum width is over eighty-one months. The increase in sentence generated by a two-level base offense level increase is only "potential" because a sentence at the high end of range X will be identical to a sentence at the low end of range X+2. Therefore, a judge could impose identical sentences on a defendant with or without a two-level § 2D1.1(b) (1) weapon enhancement.
214. 518 U.S. 81 (1996).
215. Infra notes 282-91, 340 and accompanying text.
216. See 21 U.S.C. § 841(b)(1)(A)(iv) (1994) (prescribing a mandatory minimum penalty for offenses involving one hundred grams or more of phencyclidine (PCP)); id. § 841(b)(1)(A)(v) (1994) (prescribing a mandatory minimum penalty for offenses involving ten grams or more of LSD).
217. 1999 SOURCEBOOK, supra note 5, at 69 tbl.34 (showing that of 22,440 defendants sentenced for drug offenses in 1999, only 405, or 1.8%, were sentenced for drugs other than cocaine (powder or crack), heroin, marijuana, or methamphetamine).
218. Id. at 81 fig.J.
219. The data underlying Figure 2 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
220. The data underlying Figure 2 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
221. The data underlying Figure 2 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
222. The data underlying Figure 2 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
223. The data underlying Figure 3 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
224. The data underlying Figure 3 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
225. The data underlying Figure 3 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
226. The data underlying Figure 3 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 84 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
227. The average (mean) sentence for powder cocaine declined from 96.5 months in 1993 to 79.1 months in 1999. The average (mean) sentence for crack cocaine was 123.1 months in 1993, increased to 133.4 months in 1994, and declined steadily to 120.3 months in 1999. The average (mean) sentence for heroin was 72.3 months in 1993, which increased to 76.2 months in 1994, declined steadily thereafter to 58.1 months in 1998, but increased to 61.6 months in 1999. The average (mean) sentence for marijuana was 45.4 months in 1993, which increased to 46.5 months in 1994, and then decreased steadily thereafter to 33.7 months in 1999. The average (mean) sentence for methamphetamine was 106.0 months in 1993, and 88.8 months in 1998. 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
228. The average (mean) sentence for powder cocaine declined from 96.5 months in 1993 to 79.1 months in 1999. The average (mean) sentence for crack cocaine was 123.1 months in 1993, increased to 133.4 months in 1994, and declined steadily to 120.3 months in 1999. The average (mean) sentence for heroin was 72.3 months in 1993, which increased to 76.2 months in 1994, declined steadily thereafter to 58.1 months in 1998, but increased to 61.6 months in 1999. The average (mean) sentence for marijuana was 45.4 months in 1993, which increased to 46.5 months in 1994, and then decreased steadily thereafter to 33.7 months in 1999. The average (mean) sentence for methamphetamine was 106.0 months in 1993, and 88.8 months in 1998. 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; 1999 SOURCEBOOK, supra note 5, at 81 fig.J.
229. Supra notes 151-62 and accompanying text.
230. The data underlying Figure 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; SOURCEBOOK, supra note 5, at 81 fig.J.
231. The data underlying Figure 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; SOURCEBOOK, supra note 5, at 81 fig.J.
232. The data underlying Figure 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; SOURCEBOOK, supra note 5, at 81 fig.J.
233. The data underlying Figure 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 144 fig.G; 1994 ANNUAL REPORT, supra note 136, at 115 fig.K; 1995 ANNUAL REPORT, supra note 90, at 110 fig.K; 1996 SOURCEBOOK, supra note 107, at 56 fig.I; 1997 SOURCEBOOK, supra note 111, at 81 fig.J; 1998 SOURCEBOOK, supra note 84, at 81 fig.J; SOURCEBOOK, supra note 5, at 81 fig.J.
234. 1993 ANNUAL REPORT, supra note 5, at 56 tbl.13.
235. 1999 SOURCEBOOK, supra note 5, at 67 fig.I n.1.
236. 1999 SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, available at http://www.albany. edu/sourcebook/1995/pdf/t437.pdf (last visited Aug. 1, 2000) (data drawn from U.S. Dept. Justice, Drug Enforcement Admin., Federal-Wide Drug Seizure System).
237. Indeed, the close nexus between BOL and drug quantity is underscored by the U.S. Sentencing Commission's use of BOL as a proxy for drug quantity in its own reports through 1996. See, e.g., 1995 ANNUAL Report, supra note 90, at 113-16.
238. See supra notes 60-84 and accompanying text (describing the Federal sentencing guidelines).
239. See U.S.S.G. § 2D1.1(c) (2000) (displaying a drug quantity table).
240. U.S.S.G. § 3B1.1 (2000).
241. For example, four offense levels are added if "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," U.S.S.G. § 3B1.1(a) (2000), while only three levels are added if "the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b) (2000).
242. U.S.S.G. § 3B1.2 (2000) (describing the decreases in the offensive level, depending on defendant's role in the offense).
243. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
244. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
245. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
246. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
247. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
248. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
249. The data underlying Figure 9 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 141 tbl.56; 1994 ANNUAL REPORT, supra note 136, at 112 tbl.51; 1995 ANNUAL REPORT, supra note 90, at 108 tbl.44; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 75 tbl.40; 1998 SOURCEBOOK, supra note 84, at 75 tbl.40; 1999 SOURCEBOOK, supra note 5, at 75 tbl.40.
250. Supra note 208.
251. U.S.S.G. § 3B1.1(a) (2000).
252. See supra note 95 (noting that the average time lag in 1999 was nearly nine months).
253. Data on case filings for 1993-97 in this column are from the ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD: A FIVE-YEAR RETROSPECTIVE 16 (1998), available at http://www.uscourts.gov/Caseload.pdf [hereinafter CASELOAD RETROSPECTIVE]. The figure for drug case filings in 1998 is drawn from LEONIDAS RALPH MECHAM, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 1998 ANNUAL REPORT OF THE DIRECTOR 212 tbl.D-2 (1999), available at http://www.uscourts.gov/dirrpt98/d02sep98.pdf. There are some small discrepancies between the number of drug case filings reported for 1994-97 in the two sources. These discrepancies would affect the ratios, but not the trend, reported in the right-hand column of Table 1.
254. Data on case filings for 1993-97 in this column are from the ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD: A FIVE-YEAR RETROSPECTIVE 16 (1998), available at http://www.uscourts.gov/Caseload.pdf [hereinafter CASELOAD RETROSPECTIVE]. The figure for drug case filings in 1998 is drawn from LEONIDAS RALPH MECHAM, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 1998 ANNUAL REPORT OF THE DIRECTOR 212 tbl.D-2 (1999), available at http://www.uscourts.gov/dirrpt98/d02sep98.pdf. There are some small discrepancies between the number of drug case filings reported for 1994-97 in the two sources. These discrepancies would affect the ratios, but not the trend, reported in the right-hand column of Table 1.
255. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
256. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
257. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
258. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
259. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
260. Data for the sentence column in Table 1 comes from the following sources: 1994 ANNUAL REPORT, supra note 136, at 39 tbl.12; 1995 ANNUAL REPORT, supra note 90, at 43 tbl.10; 1996 SOURCEBOOK, supra note 107, at 7 tbl.3; 1997 SOURCEBOOK, supra note 111, at 12 tbl.3; 1998 SOURCEBOOK, supra note 84, at 12 tbl.3; 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
261. See U.S.S.G. § 3B1.2, cmt. n.1 (2000) ("Subsection (a) [(minimal participant adjustment)] . . . is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group."); U.S.S.G. § 3B1.2, cmt. n.3 (2000) ("For purposes of § 3B1.2(b), a minor participant means any participant who is less culpable than most other participants.").
262. See, e.g., United States v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991); United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990); United States v. Daughtrey, 874 F.2d 213, 216-17 (4th Cir. 1989).
263. See, e.g. United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998) (holding that defendant was not entitled to a reduction merely because he was less culpable than his codefendants); United States v. Pena, 33 F.3d 2, 3 (2d Cir. 1994) (rejecting the argument that the focus should be only on a comparison of defendant to his cohorts); United States v. Zaccardi, 924 F.2d 201, 203 (11th Cir. 1991) (holding that fact that the defendant may have been the least culpable did not show that his role in the conspiracy was minor).
264. Sometimes a defendant who is actually part of a group might be prosecuted alone. For example, a defendant apprehended with drugs might be prosecuted in a separate case where other known members of his conspiracy had already been prosecuted or had not yet been apprehended. In such cases, the defendant might be eligible for a mitigating role adjustment, particularly if his relevant conduct was determined in whole or in part based on the conduct of other members of the group. See, e.g., United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998) (rejecting role reduction where the sentence was based only on the drugs defendant himself distributed); United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir. 1991) (holding that defendant must show (1) that there was more than one participant in the relevant conduct and (2) that defendant's culpability for the relevant conduct was relatively minor compared to the other participants).
265. See supra note 208 and accompanying text (noting that § 3B1.1 of the Guidelines provides differing levels of offense severity); supra fig.9 (relating the statistics on this decrease).
266. As noted, one of us (Bowman) was an Assistant U.S. Attorney in the Southern District of Florida (Miami) from 1989-96. He is unaware of any nationwide initiative to cast the net of conspiratorial liability in drug cases wider and is extremely skeptical that any such initiative occurred or could have been implemented on a nationwide basis.
267. See, e.g., United States v. Lopez-Gil, 965 F.2d 1124, 1131 (1st Cir. 1992) (affirming the denial of minor role); United States v. Rossy, 953 F.2d 321, 326 (7th Cir. 1992) (same); United States v. Cacho, 951 F.2d 308, 309-10 (11th Cir. 1992) (same); United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (same); United States v. Zweber, 913 F.2d 705, 710 (9th Cir. 1990) (same); United States v. Williams, 890 F.2d 102, 104 (8th Cir. 1989) (same); United States v. White, 875 F.2d 427, 434 (4th Cir. 1989) (same); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989) (same); see also United States v. Caballero, 936 F.2d 1292, 1299-1300 (D.C. Cir. 1991) (remanding because the sentence was adjusted solely because of courier status).
268. See, e.g., United States v. Harfst, 168 F.3d 398, 402-03 (10th Cir. 1999) (holding courier eligible for a reduction even when he is only held accountable for the drugs he actually carried); United States v. Isaza-Zapata, 148 F.3d 236, 242 (3d Cir. 1998) (holding that courier can have a minor role even if only charged with drugs he actually carried); see also United States v. Campbell, 139 F.3d 820, 822 (11th Cir. 1998) (reversing where the district court apparently denied a role reduction solely because defendant was a courier); United States v. DeVaron, 136 F.3d 740, 746 (11th Cir. 1998) (reversing where the district court came close to stating incorrectly that couriers are ineligible for role adjustments as a matter of law); United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997) (finding counsel ineffective in failing to seek role reductions for courier where it was hard to "imagine a defendant better suited for serious consideration").
269. U.S.S.G. § 5A (1998).
270. Id.
271. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
272. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
273. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
274. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
275. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
276. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
277. The percentages of sentenced federal drug defendants in Criminal History Category I from 1993 through 1998 were as follows: 62.5% in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; 59.0% in 1994, 1994 ANNUAL REPORT, supra note 136, at 109 tbl.48; 57.8% in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; 55.8% in 1996, 1996 SOURCEBOOK, supra note 107, at 49 tbl.32; 57.1% in 1997, 1997 SOURCEBOOK, supra note 111, at 72 tbl.37; 56.7% in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; 55.6% in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
278. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
279. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
280. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
281. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
282. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
283. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
284. These figures were determined by multiplying the percentage of defendants in each criminal history category by that category's numerical value (e.g., if 7.4% of the drug defendants sentenced in 1998 fell into Criminal History Category VI, the product of these values was 7.4 x 6), adding the resulting products from all six criminal history categories, and dividing by one hundred. The average criminal history category from 1993 through 1998 was as follows: 1.87 in 1993, 1993 ANNUAL REPORT, supra note 5, at 139 tbl.54; in 1994, 1994 ANNUAL REPORT, supra note 135, at 109 tbl.48; in 1995, 1995 ANNUAL REPORT, supra note 90, at 106 tbl.41; in 1996, 1996 SOURCEBOOK, supra note 106, at 49 tbl.32; in 1997, 1997 SOURCEBOOK, supra note 110, at 72 tbl.37; in 1998, 1998 SOURCEBOOK, supra note 84, at 72 tbl.37; in 1999, 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
285. Supra notes 94-119 and accompanying text.
286. Supra notes 98-113 and accompanying text.
287. Supra notes 107-09 and accompanying text.
288. Supra notes 110-13 and accompanying text.
289. Supra notes 151-62 and accompanying text.
290. Supra notes 177-88 and accompanying text.
291. Koon v. United States, 518 U.S. 81 (1996).
292. Supra notes 173-88 and accompanying text.
293. Supra notes 196-97 and accompanying text.
294. Supra notes 199-201 and accompanying text.
295. There are certainly exceptions to this rule. Occasionally, the government will need the testimony of a defendant badly enough to be willing to try and convict him, and then use the leverage of the impending sentence to make a cooperation agreement. Nonetheless, such situations are rare exceptions to the general practice of conferring substantial assistance motions only on those who plead guilty and cooperate freely.
296. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
297. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
298. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
299. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
300. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
301. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
302. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
303. The data underlying the "Guilty Plea Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 140 tbl.55; 1994 ANNUAL REPORT, supra note 136, at 111 tbl.50; 1995 ANNUAL REPORT, supra note 90, at 113; 1996 SOURCEBOOK, supra note 107, at 50 tbl.33; 1997 SOURCEBOOK, supra note 111, at 73 tbl.40; 1998 SOURCEBOOK, supra note 84, at 73 tbl.38; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 comes from the 1995 ANNUAL REPORT, supra note 90, at 113.
304. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
305. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
306. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
307. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
308. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
309. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
310. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
311. The data underlying the "Accept. Respon. Rates" column of Table 2 for the period 1993-99 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60; 1994 ANNUAL REPORT, supra note 136, at 118 tbl.55; 1995 ANNUAL REPORT, supra note 90, at 120; 1996 SOURCEBOOK, supra note 107, at 51 tbl.35; 1997 SOURCEBOOK, supra note 111, at 76 tbl.41; 1998 SOURCEBOOK, supra note 84, at 76 tbl.41; 1999 SOURCEBOOK, supra note 5, at 73 tbl.38. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
312. See FED. R. GRIM P. 11(e)(3), (4) (describing the procedure when a judge accepts or rejects a plea agreement).
313. U.S.S.G. § 3E1.1 (1998) (providing a two-level reduction where "the defendant clearly demonstrates acceptance of responsibility for his offense" and a three-level reduction for defendants whose base offense level is 16 or higher and who (a) timely provide complete information to the government about their own involvement in the offense, and (b) timely notify authorities of their intention to plead guilty "thereby permitting the government to avoid preparing for trial, and permitting the court to allocate its resources efficiently"). For a discussion of the 1992 Guidelines amendment adding U.S.S.G. § 3E1.1(b), providing an additional third level of reduction for acceptance, see supra notes 123-34 and accompanying text.
314. In addition to the data reported in Table 2, see 1996 SOURCEBOOK, supra note 107, at 62 fig.S (showing, in a bar graph, that acceptance of responsibility rates increased in every drug type from 1992 through 1996).
315. U.S.S.G. § 3E1.1(b)(2) (1998).
316. U.S.S.G. § 3E1.1(b)(1) (1998).
317. See HAINES, BOWMAN & WOLL, supra note 49, at 864 (stating that, "[t]he extra one-level reduction . . . is not discretionary if the required showing is made" and collecting cases in support of that proposition).
318. 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60.
319. 1999 SOURCEBOOK, supra note 5, at 76 tbl.41.
320. 1993 ANNUAL REPORT, supra note 5, at 150 tbl.60.
321. 1999 SOURCEBOOK, supra note 5, at 76 tbl.41.
322. U.S.S.G. § 5A (2000).
323. This ratio is set by statute in 28 U.S.C. § 994(b)(2) (1994).
324. Supra note 54 and accompanying text (discussing sentencing discretion).
325. For example, in 1993, 72.7% of all drug defendants were sentenced within the lowest one-quarter of the applicable guideline range. 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67. In 1999, 71.2% of drug trafficking defendants were sentenced at the absolute bottom of the applicable range, and 81.2% were sentenced below the midpoint in the range. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29 (The Sentencing Commission changed its method of reporting sentences within range in 1997. See infra note 253.). See also Alex Kosinski, Carthage Must Be Destroyed, 12 FED. SENT. REP. 67, 67 (1999), for a discussion in which Judge Kosinski of the United States Court of Appeals for the Ninth Circuit describes his experiences as a trial judge as follows: "Once I have figured out the range, I always sentence at the very bottom . . . ."
326. For example, in 1993, 72.7% of all drug defendants were sentenced within the lowest one-quarter of the applicable guideline range. 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67. In 1999, 71.2% of drug trafficking defendants were sentenced at the absolute bottom of the applicable range, and 81.2% were sentenced below the midpoint in the range. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29 (The Sentencing Commission changed its method of reporting sentences within range in 1997. See infra note 253.). See also Alex Kosinski, Carthage Must Be Destroyed, 12 FED. SENT. REP. 67, 67 (1999), for a discussion in which Judge Kosinski of the United States Court of Appeals for the Ninth Circuit describes his experiences as a trial judge as follows: "Once I have figured out the range, I always sentence at the very bottom . . . ."
327. For example, in 1993, 72.7% of all drug defendants were sentenced within the lowest one-quarter of the applicable guideline range. 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67. In 1999, 71.2% of drug trafficking defendants were sentenced at the absolute bottom of the applicable range, and 81.2% were sentenced below the midpoint in the range. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29 (The Sentencing Commission changed its method of reporting sentences within range in 1997. See infra note 253.). See also Alex Kosinski, Carthage Must Be Destroyed, 12 FED. SENT. REP. 67, 67 (1999), for a discussion in which Judge Kosinski of the United States Court of Appeals for the Ninth Circuit describes his experiences as a trial judge as follows: "Once I have figured out the range, I always sentence at the very bottom . . . ."
328. From 1993-96, the Sentencing Commission reported the percentage of defendants sentenced within each quartile of the sentencing range. See, e.g., 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67 (depicting such figures in tabular form for 1993). Beginning in 1997, the Commission stopped providing figures by quartile, and instead reported the percentage of defendants sentenced to: (a) the minimum possible sentence within the range, (b) between the minimum and the midpoint in the range, (c) the midpoint in the range, (d) between the midpoint and the maximum possible sentence in the range, and (e) the maximum possible sentence within the range. See, e.g., 1997 SOURCEBOOK, supra note 110, at 59 tbl.29 (showing the data divided into these five categories for 1997).
329. From 1993-96, the Sentencing Commission reported the percentage of defendants sentenced within each quartile of the sentencing range. See, e.g., 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67 (depicting such figures in tabular form for 1993). Beginning in 1997, the Commission stopped providing figures by quartile, and instead reported the percentage of defendants sentenced to: (a) the minimum possible sentence within the range, (b) between the minimum and the midpoint in the range, (c) the midpoint in the range, (d) between the midpoint and the maximum possible sentence in the range, and (e) the maximum possible sentence within the range. See, e.g., 1997 SOURCEBOOK, supra note 110, at 59 tbl.29 (showing the data divided into these five categories for 1997).
330. The percentage of drug trafficking defendants sentenced within the lowest quartile of the applicable sentencing range from 1993 to 1996 was as follows: 72.7% in 1993, 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67; 72.9% in 1994, 1994 ANNUAL REPORT, supra note 136, at 87 tbl.34; 74.5% in 1995, 1995 ANNUAL REPORT, supra note 90, at 92 tbl.32; 78.4% in 1996, 1996 SOURCEBOOK, supra note 107, at 44 tbl.27. The figures in the Commission reports for this period are expressed as percentages of the entire group of drug trafficking defendants sentenced within the reporting year, rather than as a percentage of defendants sentenced within range. However, the conversion to percentage of all defendants sentenced within range and within a given quartile is easily accomplished.
331. The percentage of drug trafficking defendants sentenced within the lowest quartile of the applicable sentencing range from 1993 to 1996 was as follows: 72.7% in 1993, 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67; 72.9% in 1994, 1994 ANNUAL REPORT, supra note 136, at 87 tbl.34; 74.5% in 1995, 1995 ANNUAL REPORT, supra note 90, at 92 tbl.32; 78.4% in 1996, 1996 SOURCEBOOK, supra note 107, at 44 tbl.27. The figures in the Commission reports for this period are expressed as percentages of the entire group of drug trafficking defendants sentenced within the reporting year, rather than as a percentage of defendants sentenced within range. However, the conversion to percentage of all defendants sentenced within range and within a given quartile is easily accomplished.
332. The percentage of drug trafficking defendants sentenced within the lowest quartile of the applicable sentencing range from 1993 to 1996 was as follows: 72.7% in 1993, 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67; 72.9% in 1994, 1994 ANNUAL REPORT, supra note 136, at 87 tbl.34; 74.5% in 1995, 1995 ANNUAL REPORT, supra note 90, at 92 tbl.32; 78.4% in 1996, 1996 SOURCEBOOK, supra note 107, at 44 tbl.27. The figures in the Commission reports for this period are expressed as percentages of the entire group of drug trafficking defendants sentenced within the reporting year, rather than as a percentage of defendants sentenced within range. However, the conversion to percentage of all defendants sentenced within range and within a given quartile is easily accomplished.
333. The percentage of drug trafficking defendants sentenced within the lowest quartile of the applicable sentencing range from 1993 to 1996 was as follows: 72.7% in 1993, 1993 ANNUAL REPORT, supra note 5, at 165 tbl.67; 72.9% in 1994, 1994 ANNUAL REPORT, supra note 136, at 87 tbl.34; 74.5% in 1995, 1995 ANNUAL REPORT, supra note 90, at 92 tbl.32; 78.4% in 1996, 1996 SOURCEBOOK, supra note 107, at 44 tbl.27. The figures in the Commission reports for this period are expressed as percentages of the entire group of drug trafficking defendants sentenced within the reporting year, rather than as a percentage of defendants sentenced within range. However, the conversion to percentage of all defendants sentenced within range and within a given quartile is easily accomplished.
334. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29; 1998 SOURCEBOOK, supra note 84, at 59 tbl.29; 1999 SOURCEBOOK, supra note 5, at 59 tbl.29.
335. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29; 1998 SOURCEBOOK, supra note 84, at 59 tbl.29; 1999 SOURCEBOOK, supra note 5, at 59 tbl.29.
336. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29; 1998 SOURCEBOOK, supra note 84, at 59 tbl.29; 1999 SOURCEBOOK, supra note 5, at 59 tbl.29.
337. 1990 U.S. SENTENCING COMM'N, ANN. REP. 74 tbl.S (1991) [hereinafter 1990 ANNUAL REPORT].
338. 1999 SOURCEBOOK, supra note 5, at 51 fig.G.
339. 1990 ANNUAL REPORT, supra note 256, at 74 tbl.S.
340. 1999 SOURCEBOOK, supra note 5, at 80 tbl.45.
341. Id.
342. The data in the "Upward Depart. (All Cases) (%)" column of Table 3 for the period 1993-97 is drawn from the 1997 SOURCEBOOK, supra note 111, at 51 fig.G. The 1998 data is from the 1998 SOURCEBOOK, supra note 84, at 51 fig.G.
343. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
344. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
345. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
346. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
347. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
348. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
349. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
350. The data in the "Upward Depart. (Drug Cases) (%)" column of Table 3 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.45. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
351. 28 U.S.C. § 994(n) (1994) (emphasis added).
352. Anti-Drug Abuse Act of 1986 § 1007(b), Pub. L. No. 99-570, 100 Stat. 3207.
353. 18 U.S.C. § 3553(e) (1994) (emphasis added).
354. The percentages in Table 4 understate the frequency of substantial assistance reductions because, although the Sentencing Commission only counts substantial assistance reductions accomplished at the time of the original sentencing through § 5K1.1 motions, a number of districts commonly grant these reductions only after sentencing under FED. R. CRIM. P. 35. See Linda Drazga Maxfield & John H. Kramer, U.S. SENTENCING COMMISSION SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 5 n.11 (Jan. 1998) (noting that Rule 35(b) data is not collected, but estimating that Rule 35(b) motions occur in roughly five hundred cases per year). For example, if Maxfield and Kramer are correct and an additional five hundred defendants received Rule 35(b) substantial assistance motions in 1998, the total percentage of drug defendants receiving substantial assistance motions for that year would rise from 30.1% to 32.7%. See 1998 SOURCEBOOK, supra note 84, at 80 tbl.45. Based on anecdotal reports and personal experience as an Assistant U.S. Attorney, Bowman suspects that the five hundred cases per year estimate understates the prevalence of Rule 35 motions. See also Stanley Marcus, Substantial Assistance Motions: What Is Really Happening? 6 FED. SENT. REP. 6, 6 (1993) (questioning the accuracy of Sentencing Commission departure data because information about Rule 35(b) motions not collected).
355. The percentages in Table 4 understate the frequency of substantial assistance reductions because, although the Sentencing Commission only counts substantial assistance reductions accomplished at the time of the original sentencing through § 5K1.1 motions, a number of districts commonly grant these reductions only after sentencing under FED. R. CRIM. P. 35. See Linda Drazga Maxfield & John H. Kramer, U.S. SENTENCING COMMISSION SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 5 n.11 (Jan. 1998) (noting that Rule 35(b) data is not collected, but estimating that Rule 35(b) motions occur in roughly five hundred cases per year). For example, if Maxfield and Kramer are correct and an additional five hundred defendants received Rule 35(b) substantial assistance motions in 1998, the total percentage of drug defendants receiving substantial assistance motions for that year would rise from 30.1% to 32.7%. See 1998 SOURCEBOOK, supra note 84, at 80 tbl.45. Based on anecdotal reports and personal experience as an Assistant U.S. Attorney, Bowman suspects that the five hundred cases per year estimate understates the prevalence of Rule 35 motions. See also Stanley Marcus, Substantial Assistance Motions: What Is Really Happening? 6 FED. SENT. REP. 6, 6 (1993) (questioning the accuracy of Sentencing Commission departure data because information about Rule 35(b) motions not collected).
356. The percentages in Table 4 understate the frequency of substantial assistance reductions because, although the Sentencing Commission only counts substantial assistance reductions accomplished at the time of the original sentencing through § 5K1.1 motions, a number of districts commonly grant these reductions only after sentencing under FED. R. CRIM. P. 35. See Linda Drazga Maxfield & John H. Kramer, U.S. SENTENCING COMMISSION SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 5 n.11 (Jan. 1998) (noting that Rule 35(b) data is not collected, but estimating that Rule 35(b) motions occur in roughly five hundred cases per year). For example, if Maxfield and Kramer are correct and an additional five hundred defendants received Rule 35(b) substantial assistance motions in 1998, the total percentage of drug defendants receiving substantial assistance motions for that year would rise from 30.1% to 32.7%. See 1998 SOURCEBOOK, supra note 84, at 80 tbl.45. Based on anecdotal reports and personal experience as an Assistant U.S. Attorney, Bowman suspects that the five hundred cases per year estimate understates the prevalence of Rule 35 motions. See also Stanley Marcus, Substantial Assistance Motions: What Is Really Happening? 6 FED. SENT. REP. 6, 6 (1993) (questioning the accuracy of Sentencing Commission departure data because information about Rule 35(b) motions not collected).
357. The percentages in Table 4 understate the frequency of substantial assistance reductions because, although the Sentencing Commission only counts substantial assistance reductions accomplished at the time of the original sentencing through § 5K1.1 motions, a number of districts commonly grant these reductions only after sentencing under FED. R. CRIM. P. 35. See Linda Drazga Maxfield & John H. Kramer, U.S. SENTENCING COMMISSION SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 5 n.11 (Jan. 1998) (noting that Rule 35(b) data is not collected, but estimating that Rule 35(b) motions occur in roughly five hundred cases per year). For example, if Maxfield and Kramer are correct and an additional five hundred defendants received Rule 35(b) substantial assistance motions in 1998, the total percentage of drug defendants receiving substantial assistance motions for that year would rise from 30.1% to 32.7%. See 1998 SOURCEBOOK, supra note 84, at 80 tbl.45. Based on anecdotal reports and personal experience as an Assistant U.S. Attorney, Bowman suspects that the five hundred cases per year estimate understates the prevalence of Rule 35 motions. See also Stanley Marcus, Substantial Assistance Motions: What Is Really Happening? 6 FED. SENT. REP. 6, 6 (1993) (questioning the accuracy of Sentencing Commission departure data because information about Rule 35(b) motions not collected).
358. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
359. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
360. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
361. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at
362. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
363. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
364. The data in the "Sub. Assist. Depart. (Non-Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 161 tbl.66, 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 83 tbl.33, 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 89 tbl.31, 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 41 tbl.26, 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 56 tbl.27; 1998 SOURCEBOOK, supra note 84, at 56 tbl.27; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27.
365. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
366. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
367. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
368. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
369. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
370. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
371. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
372. The data in the "Sub. Assist. Depart. (Drug Cases)" column of Table 4 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143, tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80, tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 56 tbl.27. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
373. 1995 ANNUAL REPORT, supra note 90, at 120.
374. 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53.
375. Id.
376. 1999 SOURCEBOOK, supra note 5, at 80 tbl.45.
377. We have no definitive explanation for the apparent decrease in the average size of substantial assistance departures in drug cases. However, the apparent trend is consistent with anecdotal information suggesting that U.S. Attorney's Offices and district judges are increasingly adopting standardized local practices regarding the size of substantial assistance departures. Such local practices tend to create customary discounts for substantial assistance, expressed as a percentage of the bottom of the otherwise applicable guideline range, see, e.g., United States v. Cosgrove, 73 F.3d 297, 301, 303 (11th Cir. 1996) (approving the district judge's announced practice of awarding a standard substantial assistance reduction of one-third off the low end of the applicable guideline range), or as a standard number of levels off the low end of the applicable range. See, e.g.,. United States v. King, 53 F.3d 589, 591-92 (3d Cir. 1995) (describing the district court's practice of reducing the sentence of cooperators under § 5K1.1 by three levels by analogy to acceptance of responsibility reduction).
378. Figures on the degree of substantial assistance departure from 1993 to 1996 are taken from Sentencing Commission figures provided in a fax to Frank Bowman from Courtney Semisch, U.S. Sentencing Commission (Apr. 18, 2000) (on file with author).
379. 1997 SOURCEBOOK, supra note 111, at 61 tbl.30.
380. 1998 SOURCEBOOK, supra note 84, at 61 tbl.30.
381. 1999 SOURCEBOOK, supra note 5, at 61 tbl.30.
382. U.S.S.G. § 5K2.0 (2000).
383. Id. (quoting 18 U.S.C. § 3553(b) (1994)).
384. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
385. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
386. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
387. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
388. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
389. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
390. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
391. The data in the "Down. Depart. Sec. 5K2.0 (Drug Cases)" column of Table 5 for the period 1993-98 is drawn from the following sources: 1993 ANNUAL REPORT, supra note 5, at 143 tbl.58; 1994 ANNUAL REPORT, supra note 136, at 113 tbl.53; 1995 ANNUAL REPORT, supra note 90, at 109 tbl.46; 1996 SOURCEBOOK, supra note 107, at 55 tbl.40; 1997 SOURCEBOOK, supra note 111, at 80 tbl.45; 1998 SOURCEBOOK, supra note 84, at 80 tbl.45; 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 120.
392. The data in the "Down. Depart. Sec. 5K2.0 (All Cases)" column of Table 5 for the period 1993-98 is drawn from the 1998 SOURCEBOOK, supra note 84, at 51 fig.G. The figure for 1999 is from 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 86 fig.H.
393. The data in the "Down. Depart. Sec. 5K2.0 (All Cases)" column of Table 5 for the period 1993-98 is drawn from the 1998 SOURCEBOOK, supra note 84, at 51 fig.G. The figure for 1999 is from 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 86 fig.H.
394. The data in the "Down. Depart. Sec. 5K2.0 (All Cases)" column of Table 5 for the period 1993-98 is drawn from the 1998 SOURCEBOOK, supra note 84, at 51 fig.G. The figure for 1999 is from 1999 SOURCEBOOK, supra note 5, at 80 tbl.5. The figure for 1992 is from 1995 ANNUAL REPORT, supra note 90, at 86 fig.H.
395. 518 U.S. 81 (1996).
396. See id. at 86-88 (explaining Koon's role in the beating).
397. Id. at 89.
398. The five reasons were: (1) "'the victim's wrongful conduct contributed significantly to provoking the offense behavior,' § 5K2.10"; (2) because of the "widespread publicity and emotional outrage which have surrounded this case," Koon and his co-defendant Powell were "particularly likely to be targets of abuse" in prison; (3) Koon would lose his job as a police officer and suffer "anguish and disgrace"; (4) Koon had been "significantly burdened" by successive state and federal prosecutions; and (5) Koon was not "violent, dangerous, or likely to engage in future criminal conduct" so there was no need to impose a sentence to protect the public from any future criminality. Id. at 89-90.
399. Id. at 90; see also United States v. Koon, 34 F.3d 1416, 1461 (9th Cir. 1994) (rejecting the district court's holding), aff'd in part, rev'd in part, 518 U.S. 81 (1996).
400. Koon, 518 U.S. at 99-100.
401. The Supreme Court found that neither petitioners' career loss nor the low likelihood of recidivism was an appropriate departure factor. Id. at 110-11. However, the Court sustained the district court's reliance on the unusual susceptibility of Koon and Powell to abuse in prison, as well its reliance on the fact that petitioners were subjected to successive prosecutions in state and federal court. Id. at 112.
402. Id. at 95-96 (emphasis added) (citations omitted).
403. See, e.g., Barry L. Johnson, Discretion and the Rule of Law in Federal Guidelines Sentencing: Developing Departure Jurisprudence in the Wake of Koon v. United States, 58 OHIO ST. L.J. 1697, 1713-45 (1998) (arguing, inter alia, that the Court's choice of an "abuse of discretion" standard of departure review was unjustified); Frank O. Bowman, III, Places in the Heartland: Departure Jurisprudence after Koon, 9 FED. SENT. REP. 19, 19-22 (1996) [hereinafter Bowman, Places in the Heartland] (arguing that the Koon decision rests on an unsupportable reading of Sentencing Reform Act and a misunderstanding of factual data regarding the relative institutional competence of appellate and district court judges to evaluate guideline sentencing departures); Kate Stith, The Hegemony of the Sentencing Commission, 9 FED. SENT. REP. 14, 14-18 (1996) (calling the Koon opinion "puzzling" and contending that it does not permit a "meaningful exercise of discretion by district courts).
404. See, e.g., Barry L. Johnson, Discretion and the Rule of Law in Federal Guidelines Sentencing: Developing Departure Jurisprudence in the Wake of Koon v. United States, 58 OHIO ST. L.J. 1697, 1713-45 (1998) (arguing, inter alia, that the Court's choice of an "abuse of discretion" standard of departure review was unjustified); Frank O. Bowman, III, Places in the Heartland: Departure Jurisprudence after Koon, 9 FED. SENT. REP. 19, 19-22 (1996) [hereinafter Bowman, Places in the Heartland] (arguing that the Koon decision rests on an unsupportable reading of Sentencing Reform Act and a misunderstanding of factual data regarding the relative institutional competence of appellate and district court judges to evaluate guideline sentencing departures); Kate Stith, The Hegemony of the Sentencing Commission, 9 FED. SENT. REP. 14, 14-18 (1996) (calling the Koon opinion "puzzling" and contending that it does not permit a "meaningful exercise of discretion by district courts).
405. See, e.g., Barry L. Johnson, Discretion and the Rule of Law in Federal Guidelines Sentencing: Developing Departure Jurisprudence in the Wake of Koon v. United States, 58 OHIO ST. L.J. 1697, 1713-45 (1998) (arguing, inter alia, that the Court's choice of an "abuse of discretion" standard of departure review was unjustified); Frank O. Bowman, III, Places in the Heartland: Departure Jurisprudence after Koon, 9 FED. SENT. REP. 19, 19-22 (1996) [hereinafter Bowman, Places in the Heartland] (arguing that the Koon decision rests on an unsupportable reading of Sentencing Reform Act and a misunderstanding of factual data regarding the relative institutional competence of appellate and district court judges to evaluate guideline sentencing departures); Kate Stith, The Hegemony of the Sentencing Commission, 9 FED. SENT. REP. 14, 14-18 (1996) (calling the Koon opinion "puzzling" and contending that it does not permit a "meaningful exercise of discretion by district courts).
406. See U.S.S.G. § 5K2.0 (describing grounds for departure generally).
407. 1995 ANNUAL REPORT, supra note 90, at 120.
408. 1999 SOURCEBOOK, supra note 5, at 80 tbl.45; see also id. at 56 tbl.27 (showing an overall departure rate for drug trafficking cases of 45.1%, a substantial assistance departure rate of 29.3%, a non-substantial assistance departure rate of 15.6%, and an upward departure rate in such cases of 0.2%).
409. See id. at 56 tbl.27 (showing an overall departure rate for drug trafficking cases of 45.1%, a substantial assistance departure rate of 29.3%, a non-substantial assistance departure rate of 15.6%, and an upward departure rate in such cases of 0.2%).
410. Id.
411. Id.
412. We say "one-third" because the reported figures on substantial assistance departures show that 31.1% of drug trafficking defendants receive such departures at sentencing, id., while an unknown additional number receive such departures after the initial sentencing under FED. R. CRIM. P. Rule 35(b), supra note 266.
413. And conversely, as David Sklansky has pointed out, there is no empirical proof that cooperation agreements are necessary to the successful prosecution of any class of cases, even though the felt necessity of such agreements has been "conventional wisdom for generations." David A. Sklansky, Starr, Singleton, and the Prosecutor's Role, 26 FORDHAM URB. L.J. 509, 526 (1999).
414. 1999 SOURCEBOOK, supra note 5, at app. B.
415. Id. In addition, South Florida had a non-substantial assistance departure rate of 7.3%, id., roughly half the national average, confirming that it was not keeping substantial assistance motions low by acceding promiscuously to other departures.
416. Id. The Western District of Texas has a non-substantial assistance departure rate of 15.7%, right at the national average. Id.
417. Id. The Central District of California also has a non-substantial assistance departure rate of 9.6%, well below the national average. Id.
418. For more extended discussions of the proposition that prosecutors are using substantial assistance motions more often than necessary to achieve the ostensible goals of such motions, see Bowman, Departing, supra note 168, at 57-58, 62-63; Bowman, Defending Substantial Assistance, supra note 168, at 48.
419. For more extended discussions of the proposition that prosecutors are using substantial assistance motions more often than necessary to achieve the ostensible goals of such motions, see Bowman, Departing, supra note 168, at 57-58, 62-63; Bowman, Defending Substantial Assistance, supra note 168, at 48.
420. U.S.S.G. § 5K2.0 (2000).
421. There is, of course, considerable debate about when a departure is appropriate, much of it centering on whether given facts fall within the Guidelines "heartland" and on what the term "heartland" means in Guidelines parlance. See, e.g., Koon v. United States, 518 U.S. 81, 95-96 (1996); Bowman, Places in the Heartland, supra note 290 at 19; Miller and Wright, Your Cheatin' Heart(land), supra note 1 at 1. Resolution of the fine points of this debate is unnecessary to the point made in the text. All of the commentators would agree that the term heartland refers in some sense to the ordinary or typical Guidelines case.
422. There is, of course, considerable debate about when a departure is appropriate, much of it centering on whether given facts fall within the Guidelines "heartland" and on what the term "heartland" means in Guidelines parlance. See, e.g., Koon v. United States, 518 U.S. 81, 95- 96 (1996); Bowman, Places in the Heartland, supra note 290 at 19; Miller and Wright, Your Cheatin' Heart(land), supra note 1 at 1. Resolution of the fine points of this debate is unnecessary to the point made in the text. All of the commentators would agree that the term heartland refers in some sense to the ordinary or typical Guidelines case.
423. There is, of course, considerable debate about when a departure is appropriate, much of it centering on whether given facts fall within the Guidelines "heartland" and on what the term "heartland" means in Guidelines parlance. See, e.g., Koon v. United States, 518 U.S. 81, 95- 96 (1996); Bowman, Places in the Heartland, supra note 290 at 19; Miller and Wright, Your Cheatin' Heart(land), supra note 1 at 1. Resolution of the fine points of this debate is unnecessary to the point made in the text. All of the commentators would agree that the term heartland refers in some sense to the ordinary or typical Guidelines case.
424. Wilkins and Steer, supra note 53, at 499-500.
425. U.S.S.G. § 1B1.3(a)(1)(A) (2000).
426. U.S.S.G. § 1B1.3(a)(1)(B) (2000).
427. U.S.S.G. § 1B1.3(a)(2) (2000) (emphasis added).
428. See United States v. Watts, 519 U.S. 148, 157 (1997) (holding that relevant conduct includes acquitted conduct proven by a preponderance of evidence at sentencing); HAINES, BOWMAN & WOLL, supra note 49, at 114 ("All circuits agree that relevant conduct includes uncharged conduct outside the offense of conviction.").
429. See 18 U.S.C. § 1343 (1999) (stating sentencing guidelines for wire fraud).
430. U.S.S.G. § 1B1.3(a)(2)(B) (2000).
431. 21 U.S.C. § 841(b)(1)(C) (1994).
432. For discussion of the operation of 18 U.S.C. § 924(c) (1994), see supra notes 173-82 and accompanying text.
433. See, e.g., 21 U.S.C. § 841(b)(1)(A) (1994) (imposing a minimum of ten years for a single narcotics violation, and twenty years for a violation after a conviction).
434. A defendant commits the crime of "engaging in a continuing criminal enterprise" when: (a) he commits a felony narcotics crime in violation of Title 21, United States Code, (b) that violation is part of a "continuing series of violations" undertaken by the defendant in concert with at least five other persons and he occupies an organizational, managerial, or supervisory position, and (c) the defendant "obtains substantial income or resources" from the enterprise. Id. § 848(c) (1994).
435. 1999 SOURCEBOOK, supra note 5, at 78 tbl.43 n.3.
436. Id. at 67.
437. See 21 U.S.C. § 841(b)(1)(A) (1994) (imposing a minimum mandatory sentence of not less than twenty years for trafficking in certain quantities of narcotics where death or serious bodily injury results from use of the substance).
438. 1999 SOURCEBOOK, supra note 5, at 72 tbl.37.
439. Section 843(b) makes it a crime "for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony" under the provisions of the remainder of Title 21. Thus, any defendant who violates §843(b) must commit, or cause or facilitate the commission of, another drug felony, in which case he is also guilty of the other felony as a principal, a co-conspirator under 21 U.S.C. § 846 or 21 U.S.C. § 963, or on an aiding and abetting theory under 18 U.S.C. § 2.
440. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29. In 1999, of all cases sentenced under the "Communications Facility - Drugs" category, 68.3% were sentenced at the top of the guideline range. Id. This is more than four times the rate for all crimes (14.3%), and more than half again higher than the percentage for any other type of crime, the next highest being 44.2% for arson, roughly 42% for murder and manslaughter, and 31.7% for racketeering/extortion. Id. In contrast, only 9.4% of drug trafficking cases were sentenced at the top of the range, and 71.2% were sentenced at the absolute bottom. Id. The same pattern appeared in 1998, when 68.3% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.1% of drug trafficking cases were sentenced at the guidelines maximum. 1998 SOURCEBOOK, supra note 84, at 59 tbl.29. Likewise, in 1997, 69.8% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.8% of drug trafficking cases were sentenced at the guidelines maximum. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29.
441. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29. In 1999, of all cases sentenced under the "Communications Facility - Drugs" category, 68.3% were sentenced at the top of the guideline range. Id. This is more than four times the rate for all crimes (14.3%), and more than half again higher than the percentage for any other type of crime, the next highest being 44.2% for arson, roughly 42% for murder and manslaughter, and 31.7% for racketeering/extortion. Id. In contrast, only 9.4% of drug trafficking cases were sentenced at the top of the range, and 71.2% were sentenced at the absolute bottom. Id. The same pattern appeared in 1998, when 68.3% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.1% of drug trafficking cases were sentenced at the guidelines maximum. 1998 SOURCEBOOK, supra note 84, at 59 tbl.29. Likewise, in 1997, 69.8% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.8% of drug trafficking cases were sentenced at the guidelines maximum. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29.
442. 1999 SOURCEBOOK, supra note 5, at 59 tbl.29. In 1999, of all cases sentenced under the "Communications Facility - Drugs" category, 68.3% were sentenced at the top of the guideline range. Id. This is more than four times the rate for all crimes (14.3%), and more than half again higher than the percentage for any other type of crime, the next highest being 44.2% for arson, roughly 42% for murder and manslaughter, and 31.7% for racketeering/extortion. Id. In contrast, only 9.4% of drug trafficking cases were sentenced at the top of the range, and 71.2% were sentenced at the absolute bottom. Id. The same pattern appeared in 1998, when 68.3% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.1% of drug trafficking cases were sentenced at the guidelines maximum. 1998 SOURCEBOOK, supra note 84, at 59 tbl.29. Likewise, in 1997, 69.8% of phone count cases were sentenced at the top of the applicable guideline range, while only 10.8% of drug trafficking cases were sentenced at the guidelines maximum. 1997 SOURCEBOOK, supra note 111, at 59 tbl.29.
443. Roger Groot has reminded me of another method of limiting sentencing exposure in a drug case: plead guilty to a conspiracy to commit "an offense against the United States" (drugs) under the general federal conspiracy statute, 18 U.S.C. § 371 (1994). Such a plea would limit the defendant's sentence to five years, the statutory maximum under § 371.
444. For example, the numbers and percentages of defendants receiving drug mandatory minimum sentences greater than ten years from 1997-99 vary as follows: 1997-498 (7.67% of those with ten-year-or-greater drug minimum mandatories), 1997 SOURCEBOOK, supra note 111, at 78 tbl.43 n.3.; 1998-417 (5.76%), 1998 SOURCEBOOK, supra note 84, at 78 tbl.43 n.3.; and 1999-459 (6.23%), 1999 SOURCEBOOK, supra note 5, at 78 tbl.43 n.3. However, the Commission did not collect data on such sentences prior to 1997, and thus the time frame within which statistics are available is too short, and the data too uneven, to draw reliable conclusions about any trend. Likewise, although the Commission did collect data on "phone count" cases throughout 1993-98, it did so for only just over half of an already small sample, and also changed the reporting format in 1997, with the result that no conclusions about trends can be reached.
445. For example, the numbers and percentages of defendants receiving drug mandatory minimum sentences greater than ten years from 1997-99 vary as follows: 1997-498 (7.67% of those with ten-year-or-greater drug minimum mandatories), 1997 SOURCEBOOK, supra note 111, at 78 tbl.43 n.3.; 1998-417 (5.76%), 1998 SOURCEBOOK, supra note 84, at 78 tbl.43 n.3.; and 1999-459 (6.23%), 1999 SOURCEBOOK, supra note 5, at 78 tbl.43 n.3. However, the Commission did not collect data on such sentences prior to 1997, and thus the time frame within which statistics are available is too short, and the data too uneven, to draw reliable conclusions about any trend. Likewise, although the Commission did collect data on "phone count" cases throughout 1993-98, it did so for only just over half of an already small sample, and also changed the reporting format in 1997, with the result that no conclusions about trends can be reached.
446. For example, the numbers and percentages of defendants receiving drug mandatory minimum sentences greater than ten years from 1997-99 vary as follows: 1997-498 (7.67% of those with ten-year-or-greater drug minimum mandatories), 1997 SOURCEBOOK, supra note 111, at 78 tbl.43 n.3.; 1998-417 (5.76%), 1998 SOURCEBOOK, supra note 84, at 78 tbl.43 n.3.; and 1999-459 (6.23%), 1999 SOURCEBOOK, supra note 5, at 78 tbl.43 n.3. However, the Commission did not collect data on such sentences prior to 1997, and thus the time frame within which statistics are available is too short, and the data too uneven, to draw reliable conclusions about any trend. Likewise, although the Commission did collect data on "phone count" cases throughout 1993-98, it did so for only just over half of an already small sample, and also changed the reporting format in 1997, with the result that no conclusions about trends can be reached.
447. See, e.g., David Yellen, Probation Officers Look at Plea Bargaining, and Do Not Like What They See, 8 FED. SENT. REP. 339, 340 (1996) (describing "fact bargaining and guideline-factor bargaining" as "the surest way to influence the sentence of a defendant who pled guilty").
448. Probation Officers Advisory Group Survey, 8 FED. SENT. REP. 303 (1996) (citing Francesca Bowman's letter to Judge Richard P. Conaboy, which summarized the survey's results). Ms. Bowman is no relation to either of the authors of this Article.
449. Frank O. Bowman, III, To Tell the Truth: The Problem of Prosecutorial "Manipulation" of Sentencing Facts, 8 FED. SENT. REP. 324 (1996) [hereinafter Bowman, To Tell the Truth]. 328. To some degree, Professor Bowman's thinking on this subject is undoubtedly influenced by having spent seven years as an Assistant U.S. Attorney in the Southern District of Florida, a district in which the U.S. Attorney's Office has historically been among the strictest in insisting that its prosecutors enforce the Sentencing Guidelines as written. He still does not believe that prosecutors across the country are routinely giving away the store in the form of outrageous fact bargains, but does think that the Southern District of Florida was and is at one end of a spectrum that includes at its other end offices which are very flexible indeed.
450. Frank O. Bowman, III, To Tell the Truth: The Problem of Prosecutorial "Manipulation" of Sentencing Facts, 8 FED. SENT. REP. 324 (1996) [hereinafter Bowman, To Tell the Truth]. 328. To some degree, Professor Bowman's thinking on this subject is undoubtedly influenced by having spent seven years as an Assistant U.S. Attorney in the Southern District of Florida, a district in which the U.S. Attorney's Office has historically been among the strictest in insisting that its prosecutors enforce the Sentencing Guidelines as written. He still does not believe that prosecutors across the country are routinely giving away the store in the form of outrageous fact bargains, but does think that the Southern District of Florida was and is at one end of a spectrum that includes at its other end offices which are very flexible indeed.
451. The proceedings of the Saint Louis University Sentencing Symposium are collected in 44 ST. LOUIS U. L.J. (2000).
452. Supra tbl. 2.
453. Supra notes 48, 240-48 and accompanying text.
454. "Super acceptance of responsibility" adjustments allow the subtraction of a third offense level for those defendants receiving the regular acceptance reduction who also plead guilty early and provide full information about their crime. Supra notes 120-34 and accompanying text.
455. Supra note 252 and accompanying text.
456. Supra notes 258-59 and accompanying text.
457. Supra notes 266-70 and accompanying text.
458. Id.
459. Supra text accompanying notes 271-72.
460. Supra notes 273-77 and accompanying text.
461. Supra tbl. 5.
462. 518 U.S. 81 (1996).
463. See supra text accompanying notes 306-29 (discussing in detail the charge and fact bargaining methods).
464. See supra text accompanying note 329 (recounting, as an example, one anecdote from the St. Louis University Sentencing Symposium).
465. 1993 ANNUAL REPORT, supra note 5, at 56 tbl.13.
466. 1999 SOURCEBOOK, supra note 5, at 12 tbl.3.
467. 2000 EXECUTIVE OFFICE FOR U.S. ATTORNEYS, FY BUDGET REPORT 107. These figures include attorney and nonattorney personnel.
468. 1999 SOURCEBOOK, supra note 5 app. B (national data).
469. Id. at 12 tbl.3.
470. 2000 EXECUTIVE OFFICE FOR U.S. ATTORNEYS, FY BUDGET REPORT (2000).
471. There are a variety of reasons for the relatively low federal criminal caseload, but principal among them is the fact that most federal offenses are also violations of state law. Hence, U.S. Attorney's Offices have the luxury of picking and choosing among the cases presented to them, secure in the knowledge that a case declined for prosecution at the federal level will not necessarily go unprosecuted. Instead, if the case is provable, but relatively insignificant by federal standards, it will be handled by local authorities.
472. By way of comparison, when Bowman was a Deputy District Attorney in Denver in the early 1980s, his average felony caseload was several hundred cases annually.
473. One potentially important exception to this generalization may exist in a handful of very busy border jurisdictions, notably the Southern District of California, Arizona, New Mexico, and the Southern and Western Districts of Texas. Between 1993 and 1999, the total number of narcotics defendants convicted in these districts more than doubled, from 3276 to 6605. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. We know that the size of the U.S. Attorney's Offices in these districts increased, but we do not as yet know whether the increase approximated the percentage of the increase in drug cases. If not, one might expect to find a greater-than-average decline in drug sentences in these districts in response to case pressure. The average drug sentence did decrease markedly in Arizona, the Southern District of California, and the two Texas districts (Ariz.: 49.6 months in 1993, 28.2 months in 1999; S.D. Cal.: 54.7 months in 1993, 22.4 months in 1999; S.D. Tex.: 78.7 months in 1993, 50.7 months in 1999; W.D. Tex.: 78.1 months in 1993, 38.6 months in 1999). Id. However, in New Mexico, the average drug sentence actually increased (N.M.:32.4 months in 1993 and 41.3 months in 1999). Id. Given that roughly 30% of all drug cases nationwide now arise in these five jurisdictions, what happens there has the potential for disproportionate impact on national drug statistics. We are in the midst of making a more detailed study of these and other regional phenomena for publication in a subsequent article.
474. One potentially important exception to this generalization may exist in a handful of very busy border jurisdictions, notably the Southern District of California, Arizona, New Mexico, and the Southern and Western Districts of Texas. Between 1993 and 1999, the total number of narcotics defendants convicted in these districts more than doubled, from 3276 to 6605. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. We know that the size of the U.S. Attorney's Offices in these districts increased, but we do not as yet know whether the increase approximated the percentage of the increase in drug cases. If not, one might expect to find a greater-than-average decline in drug sentences in these districts in response to case pressure. The average drug sentence did decrease markedly in Arizona, the Southern District of California, and the two Texas districts (Ariz.: 49.6 months in 1993, 28.2 months in 1999; S.D. Cal.: 54.7 months in 1993, 22.4 months in 1999; S.D. Tex.: 78.7 months in 1993, 50.7 months in 1999; W.D. Tex.: 78.1 months in 1993, 38.6 months in 1999). Id. However, in New Mexico, the average drug sentence actually increased (N.M.:32.4 months in 1993 and 41.3 months in 1999). Id. Given that roughly 30% of all drug cases nationwide now arise in these five jurisdictions, what happens there has the potential for disproportionate impact on national drug statistics. We are in the midst of making a more detailed study of these and other regional phenomena for publication in a subsequent article.
475. ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD: A FIVE-YEAR RETROSPECTIVE 9 (1998).
476. Supra fig.9 and accompanying text (noting decline in drug sentences).
477. Id.
478. See CASELOAD RETROSPECTIVE, supra note 212, at 16.
479. Id. at 1. 357. Id. at 9.
480. Id.
481. Id.
482. CASELOAD RETROSPECTIVE, supra note 212, at 16.
483. TRAC study, supra note 3, at http://trac.syr.edu/tracdea/findings/aboutDEA/ newFindings.html (last visited Feb. 23, 2001).
484. Id.
485. We are considering whether it may be possible to study the impact of the changed composition of the district court bench during the Clinton years had any measurable impact on sentencing outcomes. If so, the results of this study will be included in our subsequent paper.
486. Statement of Jo Ann Harris, Asst. Atty. Gen., Criminal Division, U.S. Dept. of Justice before Subcomm. on Crime, Comm. on the Judiciary, U.S. House of Rep., June 29, 1995, 1995 WL 421247 (F.D.C.H.) (opposing Sentencing Commission proposal to equalize penalties for trafficking in powder and crack cocaine).
487. For example, the average robbery sentence has declined slightly from 113.7 months in 1993 to 106.9 months in 1999. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.24, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
488. For example, the average robbery sentence has declined slightly from 113.7 months in 1993 to 106.9 months in 1999. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.24, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
489. For example, the average robbery sentence has declined slightly from 113.7 months in 1993 to 106.9 months in 1999. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.24, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
490. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4,
491. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
492. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
493. In 1993, the average immigration sentence was 18.9 months; in 1999, it was 28.4 months. In 1993, the average fraud sentence was 17.2 months; in 1999, it was 18.7 months. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.4, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14. Moreover, the number of fraud and immigration cases has increased, as well. Sentenced fraud defendants have increased from 5,528 in 1993 to 6,199 in 1999. Compare 1993 ANNUAL REPORT, supra note 5 app. B, with 1999 SOURCEBOOK, supra note 5 app. B. The number of sentenced immigration defendants more than quintupled in the same period, from 1,824 to 9,669. Id.
494. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.24, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14.
495. Compare 1993 ANNUAL REPORT, supra note 5, at 76 tbl.24, with 1999 SOURCEBOOK, supra note 5, at 30 tbl.14.
496. 1999 SOURCEBOOK, supra note 5, at 83 fig.L (showing the mean sentence length for crack offenders between 1995 and 1998 remained above 120 months); see also id. at 81 fig.J (showing that the mean sentence for crack offenders in 1999 was 120.3 months and the median sentence for crack offenders was ninety-four months).
497. Id. at 81 fig.J (showing that the mean sentence for methamphetamine offenders in 1999 was 88.8 months, and the median sentence for methamphetamine offenders was seventy months).
498. Id. (showing that the mean sentence for powder cocaine offenders in 1999 was 79.1 months, and the median sentence for powder cocaine offenders was sixty months).
499. Id. at 12 tbl.3 (stating that 23,082 cases were sentenced for drug violations in 1999).
500. Id. at 72 tbl.37.
501. Compare 1999 SOURCEBOOK, supra note 5, at 31, tbl.14, with id. at 81 fig.J.
502. Compare 1998 SOURCEBOOK, supra note 84, at 81 fig.J (showing that the median sentence for methamphetamine in 1998 was 96.8 months), with id. at 30 tbl.14 (showing that the median sentence in 1998 for sexual abuse was 75.7 months, arson was 65.5 months, assault was 39.5 months, and burglary was 26.3 months).
503. See Frank O. Bowman, III, Playing "21" with Narcotics Enforcement: A Response to Professor Carrington, 52 WASH. & LEE L. REV. 937, 980-81 (1995) (discussing deterrence as a rationale for narcotics sentences)
504. [hereinafter Bowman, Playing].
505. For example, in a speech given at Benjamin N. Cardozo School of Law in April 1993, Senior U.S. District Court Judge Jack Weinstein declared that he was withdrawing his "'name . . . [from] the wheel for drug cases . . . [because] I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade.'" Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed, or Acquitted Crimes: Do the Federal Sentencing Guidelines Promote Respect for the Law?, 10 N.Y.L. SCH. J. HUM. RTS. 835, 846 n.40 (1993).
506. MOLLY TREADWAY JOHNSON & SCOTT A. GILBERT, FEDERALJUDICIAL CENTER, THE U.S. SENTENCING GUIDELINES: RESULTS OF THE FEDERAL JUDICIAL CENTER'S 1996 SURVEY 19 (1997) ("Drug guidelines-particularly those for drug manufacture and drug trafficking-were rated the most harsh by both [judges and probation officers]. The view that these guidelines are somewhat too harsh may reflect respondents' disapproval of the effect of mandatory minimums on the guidelines, including their emphasis on quantity-based drug sentences.")
507. See Michael Katz & Caroline Durham, Department of Justice Low-Level Drug Offender Study: A Defense Perspective, 7 FED. SENT. REP. 28, 28 (1994) (drawing the "inescapable" conclusion that the "drug guidelines and mandatory minimum sentencing laws are clogging federal prisons with non-violent offenders who don't need to be there").
508. See WILL DURANT & ARIEL DURANT, THE AGE OF NAPOLEON 18-19 (1975) (describing the surrender of the Bastille by the governor of the fort at the end of a series of negotiations and skirmishes in which the attackers were receiving by far the worst of the exchange).
509. For example, in FY 1998 the non-substantial assistance rate in Arizona was 61.0%, while in Arkansas the rate was 1.7%. 1998 SOURCEBOOK, supra note 84, at app. B. Similarly, the substantial assistance departure rate varied from a low of 11.3% in the Ninth Circuit to as high as 31.5% in the Third Circuit. 1998 U.S. SENTENCING COMM'N, FY DATA FILE.
510. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. OF CRIM. L. & CRIMINOLOGY 239, 240 (1999) ("[T]he evidence is persuasive that the pre-guideline era differences among judges in sentencing philosophies were the primary sources of unwarranted disparity."); James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999) (concluding "the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines and fell to about 11 percent (or 3.9 months) in 1988-93 during the early years of the Guidelines"); A. Abigail Payne, Does Inter- Jdge Disparity Really Matter? An Analysis of the Effects of Sentencing Reform in Three Federal District Courts, 17 INT'L REV. L. & ECON. 337, 338, 357-58 (1997) (concluding from a study of three judicial districts that the Guidelines did reduce inter-judge disparity, but only by a small amount). But see Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts, 4 FED. SENT. REP. 151, 153 (1991) (concluding that inter-judge disparity before and after the adoption of the Guidelines stayed the same in one district and increased in two others). See also Hofer et al., supra, at 279 (questioning Waldfogel's results).
511. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. OF CRIM. L. & CRIMINOLOGY 239, 240 (1999) ("[T]he evidence is persuasive that the pre-guideline era differences among judges in sentencing philosophies were the primary sources of unwarranted disparity."); James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999) (concluding "the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines and fell to about 11 percent (or 3.9 months) in 1988-93 during the early years of the Guidelines"); A. Abigail Payne, Does Inter- Jdge Disparity Really Matter? An Analysis of the Effects of Sentencing Reform in Three Federal District Courts, 17 INT'L REV. L. & ECON. 337, 338, 357-58 (1997) (concluding from a study of three judicial districts that the Guidelines did reduce inter-judge disparity, but only by a small amount). But see Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts, 4 FED. SENT. REP. 151, 153 (1991) (concluding that inter-judge disparity before and after the adoption of the Guidelines stayed the same in one district and increased in two others). See also Hofer et al., supra, at 279 (questioning Waldfogel's results).
512. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. OF CRIM. L. & CRIMINOLOGY 239, 240 (1999) ("[T]he evidence is persuasive that the pre-guideline era differences among judges in sentencing philosophies were the primary sources of unwarranted disparity."); James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999) (concluding "the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines and fell to about 11 percent (or 3.9 months) in 1988-93 during the early years of the Guidelines"); A. Abigail Payne, Does Inter-Jdge Disparity Really Matter? An Analysis of the Effects of Sentencing Reform in Three Federal District Courts, 17 INT'L REV. L. & ECON. 337, 338, 357-58 (1997) (concluding from a study of three judicial districts that the Guidelines did reduce inter-judge disparity, but only by a small amount). But see Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts, 4 FED. SENT. REP. 151, 153 (1991) (concluding that inter-judge disparity before and after the adoption of the Guidelines stayed the same in one district and increased in two others). See also Hofer et al., supra, at 279 (questioning Waldfogel's results).
513. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. OF CRIM. L. & CRIMINOLOGY 239, 240 (1999) ("[T]he evidence is persuasive that the pre-guideline era differences among judges in sentencing philosophies were the primary sources of unwarranted disparity."); James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999) (concluding "the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines and fell to about 11 percent (or 3.9 months) in 1988-93 during the early years of the Guidelines"); A. Abigail Payne, Does Inter- Jdge Disparity Really Matter? An Analysis of the Effects of Sentencing Reform in Three Federal District Courts, 17 INT'L REV. L. & ECON. 337, 338, 357-58 (1997) (concluding from a study of three judicial districts that the Guidelines did reduce inter-judge disparity, but only by a small amount). But see Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts, 4 FED. SENT. REP. 151, 153 (1991) (concluding that inter-judge disparity before and after the adoption of the Guidelines stayed the same in one district and increased in two others). See also Hofer et al., supra, at 279 (questioning Waldfogel's results).
514. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. OF CRIM. L. & CRIMINOLOGY 239, 240 (1999) ("[T]he evidence is persuasive that the pre-guideline era differences among judges in sentencing philosophies were the primary sources of unwarranted disparity."); James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines, 42 J.L. & ECON. 271 (1999) (concluding "the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines and fell to about 11 percent (or 3.9 months) in 1988-93 during the early years of the Guidelines"); A. Abigail Payne, Does Inter- Jdge Disparity Really Matter? An Analysis of the Effects of Sentencing Reform in Three Federal District Courts, 17 INT'L REV. L. & ECON. 337, 338, 357-58 (1997) (concluding from a study of three judicial districts that the Guidelines did reduce inter-judge disparity, but only by a small amount). But see Joel Waldfogel, Aggregate Inter-Judge Disparity in Federal Sentencing: Evidence from Three Districts, 4 FED. SENT. REP. 151, 153 (1991) (concluding that inter-judge disparity before and after the adoption of the Guidelines stayed the same in one district and increased in two others). See also Hofer et al., supra, at 279 (questioning Waldfogel's results).
515. Hofer et al., supra note 381, at 304-05.
516. Id. at 293.
517. Hofer, Blackwell, and Ruback express the same point, albeit in the understated language of the social scientist. They say that their results suggest that the drug guidelines are affecting different cities differently, both through development of distinct city-wide adaptations and also in the degree to which the guidelines constrain individual judge discretion.Id. at 295-96.