Sentencing Federal Drug Offenders: Evidence of Judicial Activism

Abstract The Drug War ushered in harsh sentencing practices in the United States. The severity in penalties has been particularly salient in the federal criminal justice system. Increased statutory penalties and U.S. Sentencing Commission guidelines led to drug users and traffickers serving longer periods of incarceration. As a result, the federal correctional system is overburdened. A noticeable change in attitude is evident. Congress has offered leniency for certain first-time drug offenders in the form of a statutory safety valve. While a progressive step, the safety valve applies to relatively few individuals. Importantly, federal judges have some discretion to reject what they might consider to be overly lengthy sentencing mandates. This Article provides an empirical study of sentencing statistics for drug offences. The sample derives from the U.S. Sentencing Commission’s fiscal year 2019 dataset of over 20,000 cases sentenced for drug crimes. Results show that judges employed various mechanisms to reduce statutory- and guidelines-based penalties. Strategies by judges include avoiding mandatory minimums (using the safety valve and otherwise), giving greater point reductions than permitted, and rejecting Commission policies. Over 60% of sentences were below the guidelines’ minimum recommendations. The consequences are beneficial in alleviating strain on the federal prison population, but create inconsistency in sentencing practices. A qualitative component supplements the quantitative. Judges, when issuing their statement of reasons for the sentence, may include textual comments. These comments provide valuable contextual information in how judges articulate their concerns with sanctions for drug offenders. Overall results present important policy considerations.