Drug charges are No. 1 reason

Three-fourths of federal life sentences are given to minorities and the bulk are for non-violent drug offenses, according to a new report by the U.S. Sentencing Commission.

The report found that federal life sentences have fallen dramatically since President Obama took office — from 280 in fiscal year 2009 to 153 in 2013 — but no explanation was offered for the decline.

The 26-page report is groundbreaking because it is the first time the federal government has detailed who receives federal life sentences and why.

Even at the reduced number of life sentences in 2013, the Commission found an enormous racial disparity in who received life sentences. The racial breakdown of the 153 life without parole sentences given in 2013 was:

  • blacks — 45.0%.
  • whites — 24.8%.
  • Hispanics — 24.2%.
  • Asian, Native Americans and other minorities — 6.0%.
Crack lifer: Tadd Vassel, arrested at 18.

Crack lifer: Tadd Vassel, arrested at 18.

By contrast, blacks accounted for 13.2% of the U.S. population and 20.6% of federal offenders in 2013.

The offenses causing the 153 life sentences in 2013 were:

  • drugs — 41.8%.
  • firearms — 17.6%.
  • murder — 12.4%.
  • other — 11.8%.
  • extortion and racketeering — 10.5%.
  • sex abuse — 5.9%.

Drug offenses likely account for more than half of all sentences because a large share of firearm and racketeering are essentially drug offenses.

In 2013, offenders receiving life without parole were as young as 20 and as old as 80. Men accounted for 150 of the 153 life sentence.

The new report did not provide demographics for each offense category. But the numbers point to whites tending to get long sentences for sex offenses, such as child pornography, while blacks, Hispanics and Native Americans getting sent away until death largely for drug offenses.

New data: race and life sentences

Luis, now 58, has been serving life without parole in federal prison for a non-violent cocaine offense

Cocaine lifer: Luis River, now 58, has been in federal prison since 1985 for a non-violent cocaine offense

Previous reports on racial disparity looked at federal sentencing overall but provided no details on federal life sentences. Many criminal justice reform advocates have charged that life without parole sentences were being disproportionately applied to minorities but had only anecdotal evidence to support the claim.

The new report offers strong statistical proof that federal life sentences are used vigorously against minorities and mostly for non-violent offenses.

However, the reasons for the racial disparity are not dealt with in the report and remain open to debate. The report also offers detailed data on only one year — 153 life sentences in fiscal year 2013 — so it’s impossible to tell if reforms, such as the Fair Sentencing Act of 2010, have reduced the racial disparity.

The report said 4,436 federal prisoners, or about 2.5%, were serving life without parole sentences in January 2015. The Bureau of Prisons puts that number at 5,481.

The Sentencing Commission also previously reported that 302 defendants received life sentences in 2009, the recent peak. The new report puts that year’s number lower, at 280. (The Clemency Report has asked about these difference.)

Regardless, the new report covers less than 3% of lifers in federal prison, making it an important but incomplete look at the large population getting the most severe sentence short of execution.

 “De facto” life sentences add to total

The Sentencing Commission report found another 168 defendants in 2013 were given “de facto” life without parole sentences — that is, sentences of at least 470 months (about 40 years) and sometimes more than 100 years that would almost certainly mean the defendant will die in prison.

Aptly named Way Quoe Long, 52, de facto pot lifer

Aptly named Way Quoe Long, 52, “de facto” pot lifer

A total of 1,983 offenders in federal prison are serving “de facto” life sentences, the Sentencing Commission said.

Combined, there were 321 actual and “de facto” life sentences given out in fiscal year 2013. In all, 6,419 prisoners (or 3.6%) in federal prison are serving actual or “de facto” life sentences.

The most common “de facto” life without parole offense was for firearms (45.2%), child pornography (32.7%), other (16.1%) and sex abuse (5.9%).

The sentences also had a large racial tinge, although somewhat less than pure life without parole sentences.

The racial breakdown for 168 “de facto” life sentences given in fiscal year 2013 were:

  • black — 39.9%.
  • white — 36.9%
  • Hispanic — 17.3%
  • Asian, Native Americans and other minorities — 6.0%.

In all, minorities accounted for 62.9% of “de facto” life without parole sentences.

(A federal fiscal year, used for budgeting purposes, runs from October 1 through September 30.)

Crack still No. 1 drug for life sentences

robert shipp close crop

Robert Shipp, No. 1 on list of crack offenders deserving clemency

Crack cocaine was the drug most associated with life sentences, even though the Fair Sentencing Act of 2010 reduced the sentencing ratio with powder cocaine from 100:1 to 18:1 and presumably decreased life sentences for crack.

Crack cocaine and powder cocaine are the same drug, but Congress treats them differently, a decision that has put many blacks to prison because crack offenders are nearly all African American. This crack-to-powder sentencing disparity has been under attack since it was created in 1986 as an example of racial bias of drug laws.

The report found the primary drug behind life sentences in 2013 were:

  • crack cocaine — 34.4%.
  • methamphetamine — 29.7%.
  • powder cocaine — 21.9%.
  • marijuana — 6.2%.
  • heroin — 6.2%.
  • LSD, Ecstasy and other drugs — 1.6%.

The report found that life sentences were associated with larger amounts of drugs. For example, the median drug weight associated with a life sentence for powder cocaine was 85 pounds, 14 pounds for crack and 11 pounds for methamphetamine.

However, only one-third of lifers were considered an organizer, leader, manager or supervisor in their offense. For “de facto” lifers, the number was even lower — less than one-fourth were considered to have a managerial role.

In federal court, weight means a lot in sentencing, far more than the reality of a drug offense or an offender’s role.

Federal law emphasizes drug weight, causing narcotics officers to enjoy displaying what they get -- such as 130 pounds of pot found in Sequoia National Forest in Sept. 2014.

Federal law values weight, not potency or profits. Narcotics officers enjoy displaying finds, such as 130 pounds of pot found in Sequoia National Forest in Sept. 2014. Nobody was caught, but this weight may someday be assigned to a defendant in another case to help generate a life sentence.

Federal conspiracy law makes people responsible for the drug activities of other people, even if the people the defendant might not know or have worked with on drug transactions. Prosecutors define a conspiracy — a sketchy concept in the informal, ever-changing world of drug dealing — to maximize weight calculations, often making sentences based more on what the law allows rather than reality of a defendant’s importance.

Federal drug sentences are based on rough estimates of drug weights — a guy says he was doing this much business for a couple years — that were never proven at trial and which the science of recollection shows are almost certainly inaccurate. But these weight guesses, made in after-trial reports, are the basis for many a life sentence.

The Sentencing Commission has tried to de-emphasize weight because it’s an economically meaningless way to value a drug transaction. A courier making $2,500 is just as responsible for the drug weight as an organizer making $250,000. These reforms have had limited success because federal sentencing is derived, largely by statute, by the guess of drug weights.

Mandatory minimums

Sixty-nine of the 153 pure life without parole sentences were mandatory minimums under which judges had no discretion, the report says. (The number is given as 64 elsewhere in report.) These life sentences were determined based on charging decisions made by prosecutors.

Drugs was the No. 1 reason for mandatory minimum life sentences — 35 of 69. Murder was the second most common reason — 14 of the 69.

craig cesal

Craig Cesal, marijuana lifer

In mandatory minimum cases, prosecutors can permit life sentences to be reduced if they believe the defendant provided helpful evidence. But judges are not permitted to change a mandatory life sentence without a prosecutors’ permission.

The federal sentencing guidelines played an enormous role in life sentences, too. In 67 of non-mandatory sentences, life without parole was the only sentence in the guideline range.

Guideline sentencing ranges are determined by the U.S. Sentencing Commission, made up mostly of federal judges. But these sentences are heavily influence by Congressionally established mandatory minimum penalties. Guideline sentencing ranges can’t go below the mandatory prison term set by Congress.

Guidelines were mandatory until 2005. The Supreme Court made them advisory in the Booker decision and judges can now make sentences shorter or longer, as long as they are within the boundaries set by law.

Trial penalty

The Sentencing Commission report offered support that life sentences were applied mostly against defendants going to trial.

Of the 153 life sentences given in 2013, 105 of them were given after trial — a rate of 68.6%.

Critics say defendants are unfairly punished for exercising their constitutional right to trial, creating a “trial penalty” that is more prosecutorial gamesmanship than justice. The trial penalty also results in a disproportionate number of truly innocent people serving life without parole because they refuse to plead guilty to a crime they did not commit.

DNA evidence has found that about 4% of murder and rape convictions are in error. However, drug cases have no such safety valve and are almost entirely based on testimony of other drug offenders seeking sentence reductions.

Trials are held in only 3.1% of federal cases: when defendants assert they are innocent of all or some of the charges and when a prosecutor won’t give them a sentence reduction.

The difference between the plea deal offered by a prosecutor and life without parole can be enormous — as little as a few years in prison for pleading guilty but life without parole for being convicted at trial.

The extreme is likely to cause innocent people to both plead guilty when they are not and get life sentences for being unable to prove their case.

“De facto” life sentences also appeared to have a large trial penalty. Fifty-three percent were given after a trial.

Questions unanswered

Although the new report is the most in-depth analysis to date of federal life sentences to date, it still leaves many unanswered questions.

It did not provide race and offense data for more than one years. Thus, it is still not know how many crack lifers, pot lifers and so on are held in federal prisons.

Even for 2013, the report did not provide a racial breakdown by offense type or drug. Thus, it’s not know how many blacks received life sentences for non-violent drug offenses, even in 2013.

The report provided a moderately detailed snapshot for just just one year. A chart (reproduced above) showed actual life sentences rose from 2004 to 2009, then declined. But the report did not provide data that might explain the drop in 2010 or help understand whether recent sentencing reforms reduced (or perhaps increased) racial disparity in sentencing.

It seems likely that racial disparity in life sentencing has decreased since the Fair Sentencing Act of 2010 was passed, but the report provides no data on the issue.

See report on Commission web site


Antonio, now 80, is the nation's longest serving marijuana prisoner, locked up since 1980

De facto lifer: Antonio Bascaro, now 80, the longest serving marijuana prisoner in U.S. history, has been locked up since 1980 for his non-violent offense. Release date: June 2019.

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