Using Most Recent Data to Understand Differences Between Federal and State Criminal Sentencing

2019 Publication: Most Recent Fiscal Year

Federal sentencing guidelines are notoriously harsh, having sent hundreds of thousands of people to prison over the last 50 years. But there are still large differences in federal sentencing between categories of crime. This means that, while the median time served in federal prison is longer than state prison sentences by some measures, inmates who are sentenced for crimes like tax evasion and money laundering are often incarcerated for much shorter durations.

An overview of the federal inmate population

The United States Sentencing Commission recently released its Overview of Federal Criminal Cases, a report that breaks down the demographics and main crimes of the federal-prison inmate population. 

The report includes a few striking takeaways, including:

• Sentences vary dramatically according to the underlying crime. Tax offenders had an average sentence of just 17 months whereas the average sentence length for methamphetamine trafficking was 95 months.
• Surprisingly, the largest racial group of offenders, by far, are Hispanics. A large proportion of these are non-citizens who have committed immigration-related crimes.
• Drug crimes, almost all related to trafficking, account for 28 percent of federal inmates, making those convicted of these crimes the second largest group of federal prisoners. However, the total number of prisoners incarcerated in the federal system for drug crimes has fallen sharply in the last five years, totaling a decline of more than 19 percent.
• Crimes that involve actual violence are rarely prosecuted at the federal level. While this may seem to make federal crimes less serious, in reality it means that federal sentences can be radically draconian when compared to similar crimes that are prosecuted at the state level.
• The single largest category of crime for which federal prisoners are sentenced is immigration, representing more than 34 percent of all federal cases. The vast majority of immigration defendants are both Hispanic and non-citizens, and most receive prison-only sentences followed by mandatory deportation.
• While the total number of federal inmates has declined by more than 15 percent since 2011, the number of immigration offenders has increased by 16 percent.

Federal caseload is very different from that of state courts

The most striking features of the federal inmate population is the sheer number who have been convicted for either superficially victimless or non-violent crimes. The largest crime categories under which federal inmates have been sentenced are, in order, immigration crimes, drug trafficking or manufacture, firearms violations and white-collar crimes, including money laundering. Combined, those convicted of these crimes represent nearly 85 percent of all federal prisoners. 

Unlike at the state level, only 20 percent of federal prisoners are black and 21 percent white. Additionally, an incredible 42 percent of federal offenders are non-citizens. This means that a huge portion of the approximately 38,000 Hispanic inmates within the federal system are foreign citizens who have minimal or no English ability, posing an additional challenge to handling these offenders. 

The federal prison system comprises a remarkably small part of America’s total carceral capacity. With just under 70,000 inmates currently incarcerated, the entire federal prison system has far fewer inmates than many states, including California, New York and Florida. However, for the types of crimes involved, federal sentences tend to be far longer. And once sentenced, inmates will serve out at least 85 percent of their nominal sentences, with additional periods of supervised release often following the sentence’s completion.

Federal sentencing is different than at the state level

One major difference between the federal and state level is that federal prisons do not offer parole. 

Additionally, time reductions for good behavior are strictly limited to 15 percent, meaning that someone who is sentenced to 10 years in federal prison will not be let free a moment before the end of the sixth month of their eighth year of incarceration. This may be a shock to some as state prisons often allow for massive reductions from maximum sentences through early release programs, especially for nonviolent offenders. 

Another point of confusion is the fact that there is no parole at the federal level. Instead, federal courts have instituted a program called supervised release. This works similar to parole but with the crucial difference that it is in addition to the sentence rather than a substitution for continued imprisonment. Restated, federal courts have no indeterminate sentencing. And this means that someone who is sentenced to a certain number of months in federal prison will serve at least 85 percent of that time, without exception.

Federal charges must be taken seriously

As attorneys with decades of experience, we have seen all too many clients fail to take the federal cases against them with sufficient seriousness from the minute charges are handed down. And this nearly always results in long terms of incarceration.

The apparently victimless nature of most federal crimes coupled with the severity of sentences handed down can blind defendants to the threat they face. An experienced federal criminal lawyer can often help their client achieve a reduced sentence. And in the approximately 8 percent of federal cases where the charges are ultimately dismissed, the defendant has nearly always retained competent legal counsel to fight on their behalf. 

All told, nearly 98 percent of federal cases never go to trial. The vast majority of these are resolved through plea deals where defendants are threatened with extremely harsh potential sentences if they should go to trial and lose. A skilled federal criminal attorney can help defendants to get the best possible plea deal. And in some cases, they may even be able to get the charges dismissed outright through either suppression of evidence or by convincing the prosecution that their chances of winning at trial are too low to justify the risks and costs.