Top Federal Criminal Defense Lawyer Michael Leonard explains recidivism and sentencing.
One of the issues that often arises in federal criminal cases, particularly during a sentencing hearing, is the concept of “recidivism.” What does that mean and why does it matter?
Recidivism, in simple terms, is the likelihood that a defendant will engage in criminal conduct in the future, i.e., after he or she is done serving a sentence, or if there is no sentence to serve, after his or her present federal case is over.
That matters when a federal criminal lawyer presents arguments to the District Court Judge at sentencing under the so-called “3553 factors,” because the defendant’s statistically low risk of engaging in criminal conduct in the future may be a persuasive factor in the Court’s sentencing determination.
One of the best sources of data on the likelihood that a defendant will, or will not, engage in criminal conduct in the future can be found in a Report from the United States Sentencing Commission, entitled, Recidivism of Federal Defenders. It is available to defense counsel and to the public. It was prepared based upon a national data set with respect to defendants who were convicted of federal criminal offenses over a significant period of time.
Accordingly, federal criminal defense counsel should make use of that Report – of course only when it assists in making an argument in support of one’s client. A couple important factors as noted by the Report are the age of the offender/defendant, and his/her personal Criminal History Category. It intuitively makes sense, from a lay perspective, that a defendant can be expected to “age out” over time, in terms of their expected continued engagement or non-engagement in criminal conduct. However, the Report provides the support, data, and legitimacy for that argument.
Indeed, the Report found that less than one-third (30.8%) of offenders aged 50 to 59 were rearrested. The Report also found that offenders aged 60 and older have the lowest rearrest rates – only 15.9%. If an attorney’s client falls within those ranges, then of course this can be the basis for one, hopefully of many, 3553 factor arguments.
Similarly, the Report found that a defendant’s Criminal History Category is strongly correlated with recidivism. The Report’s data demonstrated that offenders with zero criminal history points have the lowest rearrest rates, with slightly more than one-quarter (26.8%) of offenders with no criminal history points assigned being rearrested during the study period.
All of this points out the need for federal criminal defense counsel to bring forth the best and most persuasive arguments at the sentencing stage, in both written Sentencing Memos and during oral arguments made during sentencing hearings.
Michael Leonard
Leonard Trial Lawyers
February 6, 2024