Thoughts on Federal Sentencing: Firearms and Drug Cases

U.S. Sentencing Commission

In fiscal year 2012, the U.S. Sentencing Commission received 84,173 reports of federal criminal convictions. Of those, 5,768 involved the possession of firearms or ammunition by individuals prohibited from having them. People prohibited from having firearms include, but are not limited to, people convicted of certain state or federal felonies or domestic violence misdemeanors. This federal crime is sometimes called a “gun charge”, “possession of a firearm,” “felon in possession of a firearm,” or just “felon in possession.” There are also enhancements to sentencing the Armed Career Criminal Act which can apply. Other “gun” issues include enhancements for the use of a gun during the commission of a narcotics offense or other crime as well as supplying incorrect information in forms during the purchase or transfer of firearms.

Understanding Federal Offenses

Statistical information about how cases are prosecuted and punished is collected in an initiative by the Sentencing Commission to provide the public with easily understood, factual information about individual federal crimes. The Commission is also the federal agency responsible for writing the federal sentencing guidelines, so it’s critical for them to have a clear understanding of how and how often federal offenses are prosecuted and against whom.

It is just as crucial for the public to know how our government is handling the prosecution of alleged criminal conduct. This type of statistical information for example, revealed serious injustices caused by the disparity in sentencing for people convicted of federal crack-cocaine as compared with the sentencing for people convicted of powder cocaine offenses. Individuals convicted of crack offenses were sentenced on average to 100 times more time in prison than those whose offenses involved the same amount of powder cocaine. Because minorities were found to be more likely to be convicted of crack offenses and whites of powder-cocaine offenses, that sentencing application resulted in minority offenders being sentenced much more harshly than whites for essentially the same unlawful behavior. Those revelations led to the passage of the Fair Sentencing Act in 2010.

Federal judges use the sentencing guidelines to guide them in assessing sentencing in federal cases. It is important to know a variety of details about an accused’s background and the offense in question before an educated assessment can be made about how guidelines will apply in any case. Firearms cases are no different. Having an attorney who is well versed in the application of the sentencing guidelines is critical.

Who is being prosecuted for felon in possession, and to what result?

Here is a quick rundown of statistics:

• 98.2 percent were male.
• 51.2 percent were African American, 27 percent were white, 18.8 percent were Latino, and 2.9 percent were of other ethnic backgrounds.
• 90.8 percent were U.S. citizens.
• 95.6 percent were sentenced to imprisonment, but the sentences varied widely: 25 percent were sentenced to 2 years; another 25 percent to 8 years; and 10 percent for an average of 15 years.
• The variation in sentence largely depended on whether the non-weapon offense was itself subject to a mandatory minimum sentence, and most of those offenses are federal drug crimes.

There may be good and sufficient reasons for the variations among the sentences, as federal sentencing partially depends on the seriousness of the defendant’s criminal history.

Federal Firearm

However, these numbers may show our nation’s War on Drugs silently spreading out beyond directly drug-related offenses. Are mandatory minimum sentences for drug offenses the cause of large sentencing disparities in later convictions for non-drug crimes like felon in possession of a firearm?

Sources:

• Sentencing Law and Policy blog, “Latest USSC publication highlights remarkable ‘disparities’ (?) in federal FIP sentences,” Douglas A. Berman, Nov. 19, 2013
• U.S. Sentencing Commission Quick Facts, “Felon in Possession of a Firearm,” Nov. 13, 2013