individual focus. community perspective. Agenda 1) Sentencing - - PowerPoint PPT Presentation

Presentation to the

American Bar Association Section of Taxation

February 2012

Presented by

Herbert J. Hoelter, CEO National Center on Institutions and Alternatives www.ncianet.org

individual focus. community perspective.

Agenda

1) Sentencing

• Statistical Analysis of Sentencing Disparity

2) Federal Bureau of Prisons

• RDAP Update
• Collateral Consequences of Incarceration for non-

U.S. citizens 3) Supervised Release

• Psychological Inventory of Criminal Thinking Styles

individual focus. community perspective.

Sentencing Disparity Analysis For a Criminal Tax Case

individual focus. community perspective.

Purpose of a Disparity Analysis

• To fulfill the mandate of 18 U.S.C. §3553(a)(6)
• Assist the Court in imposing a fair and proportionate

sentence and one which avoids unwarranted disparity

• Provide the Court with a detailed data analysis

comparing sentences imposed on similarly-situated federal offenders

individual focus. community perspective.

NCIA Research Methodology

Steps of a Disparity Analysis

• Download USSC data: October 1,1998-September 30,

2009

• Create similarly-situated data pool based on:
• statute of conviction
• loss amount
• offender characteristics
• Chapter 3 adjustments

individual focus. community perspective.

• Calculate average prison sentence length
• Analyze data by loss category
• Conclusion

individual focus. community perspective.

Description of United States Sentencing Commission Data

• Computerized data collection of federal sentencing data maintained by the United

States Sentencing Commission.

• Contains data on federal criminal cases sentenced under the Sentencing Guidelines

and Policy Statements of the Sentencing Reform Act of 1984.

• Contains all cases received by the USSC that were sentenced between October 1,

1998 and September 30, 2009.*

• 99% of all federal criminal cases (over 755,000 cases) are included in dataset.
• NCIA research staff sorted and selected cases where the defendant’s statute of

conviction under Appendix A of the Guidelines directed the scorer to U.S.S.G. §2T1.1 and the defendant was ultimately scored according to U.S.S.G. §2T1.1. 4,841 cases.

*NCIA now has data through September 30, 2010.

individual focus. community perspective.

Analysis: Title 26 U.S.C. §7201  National

Offense Information:

• NCIA research staff sorted and selected only those cases where the defendant

had only one statute of conviction and that statute was Title 26 U.S.C. §7201. 3,668 cases were deleted and 1,173 cases remained.

• NCIA research staff deleted those cases that contained more than one count.

284 cases were deleted and 889 cases remained.

individual focus. community perspective.

Criminal History:

• NCIA research staff deleted those cases where the defendant was not a

Criminal History I. 95 cases were deleted and 794 cases remained.

Plea vs. Trial:

• NCIA research staff deleted those cases where the defendant did not enter into

a plea agreement. 16 cases were deleted and 778 cases remained.

Missing Information:

• NCIA research staff deleted those cases that contained missing or incomplete

sentencing information. 2 cases were deleted and 776 cases remained.

• NCIA research staff deleted those cases that contained missing or incomplete

information regarding loss. 1 case was deleted and 775 cases remained.

individual focus. community perspective.

Prison vs. Probation Analysis:

• NCIA researchers aggregated all years and tallied the total number of cases

sentenced to a term of imprisonment versus those receiving a probationary or fine only sentence to determined the percentage of each category (“Probation”

• r “Prison”). For those who received a term of imprisonment, the average

sentence length was determined.

Loss Amount Analysis:

• NCIA research staff sorted these 775 cases by the dollar amount attributed to

loss and set up loss categories reflective of the 2010 Federal Guidelines U.S.S.G §2T4.1 loss table.

individual focus. community perspective.

individual focus. community perspective. Loss Amount Total Cases Probation/ Fine Only Prison Average Prison Length $0-$5,000 n=5 5 (100.0%) 0 (0.0%) N/A >$5,000-$12,500 n=18 17 (94.4%) 1 (5.6%) 3.0 months >$12,500-$30,000 n=72 56 (77.8%) 16 (22.2%) 6.1 months >$30,000-$80,000 n=254 138 (54.3%) 116 (45.7%) 8.1 months >$80,000-$200,000 n=221 77 (34.8%) 144 (65.2%) 11.0 months Over $200,000 n=205 42 (20.5%) 163 (79.5%) 18.4 months All Cases n=775 335 (43.2%) 440 (56.8%) 12.8 months

Analysis of Title 26 USC §7201 Defendants National FY 1999-2009

individual focus. community perspective.

Circuit Analysis

• NCIA research staff sorted the 775 cases described above to determine how many

defendants were sentenced in the 4th Circuit.

• Of these 775 defendants, 77 defendants were sentenced in the 4th Circuit.

individual focus. community perspective. Loss Amount Total Cases Probation/ Fine Only Prison Average Prison Length $0-$5,000 n=0 0 (0.0%) 0 (0.0%) N/A >$5,000-$12,500 n=0 0 (0.0%) 0 (0.0%) N/A >$12,500-$30,000 n=7 5 (71.4%) 2 (28.6%) 4.0 months >$30,000-$80,000 n=18 8 (44.4%) 10 (55.6%) 7.6 months >$80,000-$200,000 n=25 9 (36.0%) 16 (64.0%) 11.8 months Over $200,000 n=27 2 (7.4%) 25 (92.6%) 18.5 months All Cases n=77 24 (31.2%) 53 (68.8%) 13.9 months

Analysis of Title 26 USC §7201 Defendants 4th Circuit FY 1999-2009

Downward Departure Analysis

• NCIA research staff sorted the 775 cases described above to determine how many

defendants received a downward departure pursuant to U.S.S.G §5K1.1. 162 defendants received a downward departure pursuant to U.S.S.G §5K1.1. 613 defendants did not receive a downward departure pursuant to U.S.S.G. §5K1.1.

• An analysis of these 162 defendants and 613 defendants follow.

individual focus. community perspective.

individual focus. community perspective. Loss Amount Total Cases Probation/ Fine Only Prison Average Prison Length $0-$5,000 n=0 0 (0.0%) 0 (0.0%) N/A >$5,000-$12,500 n=2 2 (100.0%) 0 (0.0%) N/A >$12,500-$30,000 n=9 9 (100.0%) 0 (0.0%) N/A >$30,000-$80,000 n=64 61 (95.3%) 3 (4.7%) 8.5 months >$80,000-$200,000 n=40 29 (72.5%) 11 (27.5%) 6.0 months Over $200,000 n=47 24 (51.1%) 23 (48.9%) 12.4 months All Cases n=162 125 (77.2%) 37 (22.8%) 10.2 months

Analysis of Title 26 USC §7201 Defendants Receiving a U.S.S.G. §5K1.1 Departure National FY 1999-2009

Loss Amount Total Cases Probation/ Fine Only Prison Average Prison Length $0-$5,000 n=5 5 (100.0%) 0 (0.0%) N/A >$5,000-$12,500 n=16 15 (93.8%) 1 (6.2%) 3.0 months >$12,500-$30,000 n=63 47 (74.6%) 16 (25.4%) 6.1 months >$30,000-$80,000 n=190 77 (40.5%) 113 (59.5%) 8.1 months >$80,000-$200,000 n=181 48 (26.5%) 133 (73.5%) 11.4 months Over $200,000 n=158 18 (11.4%) 140 (88.6%) 19.4 months All Cases n=613 210 (34.3%) 403 (65.7%) 13.0 months individual focus. community perspective.

Analysis of Title 26 USC §7201 Defendants Not Receiving a U.S.S.G. §5K1.1 Departure National FY 1999-2009

individual focus. community perspective.

Federal Bureau of Prisons Residential Drug Abuse Program (RDAP) Update

Policy Changes Effective March 16, 2009:

• Sentence must be 24 months or longer
• Must have documented use/abuse of drugs or alcohol

within past 12 months

• Must have self-report in Presentence Report
• Must have independent, confirmed DSM-IV diagnosis
• Must “pass” interview with BOP psychologist

individual focus. community perspective.

Changes in Program Incentives:

• Early Release Benefits
• Sentence of 37 months or greater – 12 months

extra good time

• Sentence of 31-36 months or greater – 9 months

extra good time

• Sentence of 24-30 months – 6 months extra good

time

individual focus. community perspective.

Changes in Program Incentives:

• RDAP Benefits
• Extra Good Time
• Guaranteed 6 months community confinement

(CCC/home detention)

• Separate, less-crowded dormitories

individual focus. community perspective.

RDAP Example

Sentence Length: 37 months Statutory Good Time: 5 months Time to Serve: 32 months RDAP Eligibility at: 27 months RDAP Program: 9 months Time Served in BOP 14 months Time Remaining: 18 months Release to Community Confinement: 6 months Remaining 12 months: Extra Good Time Credit

individual focus. community perspective.

Collateral Consequences of Incarceration for Non-U.S. Citizens

• Not eligible for Federal Prison Camps (Public Safety

Factor (PSF)

• Must go to low security or higher level prison
• Many incarcerated at privately run prisons for non-U.S.

citizens

• Not eligible for pre-release programs (CCC’s/home

confinement)

• Transfer to ICE facility for deportation hearing

Supervised Release Issues Psychological Inventory of Criminal Thinking Styles (PICTS)

individual focus. community perspective.

Directions: The following items, if answered honestly, are designed to help you better understand your thinking and behavior. Please take the time to complete each of the 80 items on this inventory using the four-point scale defined below: 4=strongly agree 3=agree 2=uncertain 1=disagree

individual focus. community perspective.

PCRA Offender Section

• I have helped out friends and family with

money acquired illegally.

• I have said to myself more than once that if it

wasn’t for someone “snitching” on me I would have never gotten caught.

individual focus. community perspective.

• It is unfair that I have been imprisoned for my

crimes when bank presidents, lawyers and politicians get away with all sorts of illegal and unethical behavior every day.

• I find myself expressing tender feelings

toward animals or little children in order to make myself feel better after committing a crime or engaging in irresponsible behavior.

individual focus. community perspective.

• Nobody tells me what to do and if they try I will

respond with intimidation, threats, or I might even get physically aggressive.

• Strange odors, for which there is no

explanation, come to me for no apparent reason.

individual focus. community perspective.

• I have used good behavior (abstaining from

crime for a period of time) or various situations (fight with a spouse) to give myself permission to commit a crime or engage in

• ther irresponsible activities such as using

drugs.

• I am afraid of losing my mind.

individual focus. community perspective.

• I have made mistakes in my life.
• I like to be on center stage in my relationships

and conversations with others, controlling things as much as possible.

• I have trouble following through on good initial

intentions.

individual focus. community perspective.

About the Author Glenn D. Walters, Ph.D.

• Since 1992, Dr. Walters has been employed as a clinical

psychologist by the Federal Bureau of Prisons (FCI- Schuylkill).

• Dr. Walters has written 17 books and monographs, 19

book chapters and 191 journal articles relating to psychology, crime and psychopathology.

• The original PICTS instrument was written in 1989.
• The current version of the PICTS was introduced in 2001

and began use in 2011.

individual focus. community perspective.