Recidivism and Federal Sentencing

By Zachary Margulis-Ohnuma

Many of the outrageously high sentences doled out in federal court are driven by fear — fear that a person convicted of a crime once will go on to commit another crime once he or she is freed back into the community. That’s called recidivism. Judges care about it and the U.S. Sentencing Commission tracks it. In a report that came out last month, the Sentencing Commission provided a detailed look at recidivism rates for the 32,000 people released from federal prison or onto probation in 2010.

Using statistics like those in the recidivism report is important at sentencing: if you are facing federal sentencing but are in a group with relatively low recidivism rates, your lawyer is in a better position to ask the judge for a lower sentence.

There were not a lot of surprises in the report, whose central conclusion was that people released in 2010 had the same eight-year recidivism rate as people released in 2005: fifty percent. That means about half of all people released from federal prison went on to get arrested for a new crime in the first eight years after their release. The Commission pointed out that the rate remained constant even though the U.S. Sentencing Guidelines were no longer mandatory after 2005 (under the Booker decision in the Supreme Court) and even though Probation officers started using more tools to track people who were released. Some things in the report should be taken with a grain of salt: the statistics are for new arrests, not new convictions; only people sentenced to imprisonment or released on probation were included (meaning people on supervised release or whose cases were dropped were not necessarily counted).

The report contains pretty detailed statistics that can benefit people facing federal sentencing, if presented properly to the sentencing judge. For example, sexual assault was very uncommon among people released in 2010, making up for only 1.6 percent of the new arrests. Assault, drug trafficking, and even murder were more common. The recidivism rate for people convicted of child pornongraphy offenses was about ten points lower than the average recidivism rate. Reading the data, the report debunks any lingering notion that child pornography offenders go on to commit sexual assault.

Statistics in the report may also help with applications for early termination of supervised release. The report shows clearly that most recidivism takes place in the first year after release and among younger people. Recidivism among people over 60 was only 15%, while for people released before they turned 21 the rate was over 72%.

If you are facing sentencing in federal court, is essential to persuade the judge and prosecutors you are at low risk of re-offending. One way to do that is to artfully present the statistics gathered by the Sentencing Commission to ensure that the people deciding how to sentence you have accurate information about your real likelihood of committing another crime.