U.S. Department of Justice Office of Justice Program Bureau of Justice Statistics Special Report Federal Criminal Appeals, 1999 with Trends 1985-99 April 2001, NCJ 185055 -------------------------------------------------------- This file is text only without graphics and many of the tables. A Zip archive of the tables in this report in spreadsheet format (.wk1) and the full report including tables and graphics in .pdf format are available from: http://www.ojp.usdoj.gov/bjs/abstract/fca99.htm --------------------------------------------------------- By John Scalia BJS Statistician --------------------------------------------------------- Highlights * Between 1985 and 1993 the number of Federal criminal appeals filed increased from 4,989 to 11,862. After 1993 the number filed decreased to 10,251 during 1999. * The criminal appeal rate peaked during 1993 at 23 appeals filed for every 100 convictions. After 1993 the appeal rate decreased to 16 per 100 convictions in 1999. * 95% of appeals were filed by the defendant; 5% by the government. * Defendants convicted of violent and weapons offenses filed appeals at the highest rates: 24 per 100 convictions for violent offenders and 29 per 100 for weapons offenders. * 67% of appeals were filed by offenders who pleaded guilty to at least one of the offenses charged. * 66% of appeals were filed by offenders represented by publicly provided counsel; 33%, privately retained counsel; and 1%, pro se. * 44% of offenders who filed an appeal were subject to a mandatory prison sentence; 11% were sentenced below the applicable sentencing range for substantial assistance. * Of the criminal appeals concluded during 1999, 77% were terminated on the merits. District court decisions were at least partially affirmed in 85% of these cases. * For 769 prison inmates, a successful appeal resulted in an average sentence reduction of 51 months. For 86 inmates a successful appeal by the government resulted in a sentence increase of 25 months. ---------------------------------------------------------- Between 1985 and 1993 the number of Federal criminal appeals filed in U.S. courts of appeal increased from 4,989 to 11,862. After peaking during 1993, the number of appeals filed decreased to 10,251 during 1999. Prior to implementation of the Sentencing Reform Act of 1984 (SRA), Federal criminal appeals were limited to appeals of procedural, or interlocutory, decisions and challenges by the defendant of the final judgment. The SRA opened the sentencing process to appellate review. Pursuant to the SRA both parties may appeal the sentence imposed. Imposed sentences may be appealed by the defendant or the government if (1) the sentence was imposed in violation of existing law, (2) the sentencing guidelines were incorrectly applied, (3) the court departed from the sentencing guidelines, or (4) the sentence was plainly unreasonable for offenses not addressed by the guidelines. During the 5 years following imple- mentation of the Federal sentencing guidelines, the rate at which criminal appeals were filed increased an average of 10% annually -- from 13 per 100 convictions during 1985 to 23 per 100 convictions during 1993. After 1993 the appeal rate decreased to 16 per 100 convictions, in 1999. Criminal appeals filed in U.S. courts of appeal During 1999, 10,251 criminal appeals were filed with the U.S. courts of appeal. Of these, 95% were filed by the defendant and 5% by the government. Almost half of the appeals filed challenged both the sentence imposed and the underlying conviction; 23% only the sentence, 13% only the conviction, and 16% other issues. During 1999, 19% of interlocutory appeals were filed by the government compared to 6% or less of appeals challenging the sentence. Filing rate across Federal judicial districts The rate at which criminal cases were appealed varied substantially across Federal judicial districts. During 1999, the filing rate in 11 (Arizona, Southern California, Middle Georgia, Hawaii, New Mexico, Northern New York, North Dakota, Northern Mariana Islands, Oregon, Western Texas, and Virgin Islands) of the 94 Federal judicial districts was less than 10 appeals per 100 criminal convictions. By contrast, in another 9 districts (Southern Alabama, Central California, Connecticut, Northern Florida, Maine, Rhode Island, Western Tennessee, and Eastern and Western Wisconsin), the filing rate was 30 or more per 100 criminal convictions -- ranging from 30 to 38 appeals per 100 convictions. In about half of the districts (46), the filing rate ranged from 10 to 19 appeals per 100 convictions. Characteristics of criminal cases appealed Offense of conviction. Defendants convicted of violent, drug, and weapons offenses filed a disproportionate larger number of criminal appeals than defendants convicted of other offenses such as property, immigration, and misdemeanor offenses. Defendants convicted of drug offenses filed almost half (44%) of all criminal appeals; defendants convicted of weapons offenses filed 10%; violent offenders, 7% (not shown in a table). Defendants convicted of weapons offenses were among those most likely to file an appeal: during 1999, weapons offenders filed 29 appeals for every 100 convictions. Defendants convicted of violent and drug offenses were also more likely to file an appeal: violent offenders filed 24 appeals for every 100 convictions; drug offenders, 18. Defendants convicted of property, immigration, and misdemeanor offenses were among the least likely to file an appeal: property offenders filed 14 appeals for every 100 convictions; immigration offenders, 10; and those convicted of misdemeanors, 5. Type of counsel. Two-thirds of criminal appeals were filed by defendants represented by publicly provided counsel: 41% by appointed counsel, and 25% by Federal defenders. A third of appeals were filed by defendants represented by privately retained counsel. Less than 1% were filed by offenders who represented themselves. ----------------------------- Criminal appeals filed in U.S. courts of appeal, 1985-99 The number of Federal criminal appeals filed increased from 4,989 during 1985 to 11,862 during 1993. After 1993 the number of criminal appeals filed decreased to 10,251 filed during 1999. The increase in appeals was primarily the result of changes in legislation that permitted Federal sentences to be appealed. Prior to the Sentencing Reform Act of 1984 (SRA), Federal criminal appeals were limited to appeals of procedural, or interlocutory, decisions by the district court and challenges by the defendant of the final judgment. The SRA opened the sentencing process to appellate review. The SRA permits both the defendant and government to appeal a sentence if (1) the sentence was imposed in violation of law, (2) the sentencing guidelines were incorrectly applied, (3) the court departed from the sentencing guidelines, or (4) the sentence was plainly unreasonable for offenses not addressed by the guidelines. (See 18 U.S.C. sec. 3742.) While both the number of defendants prosecuted in U.S. district courts and the number of appeals filed increased between 1985 and 1999, the number of appeals increased at more than twice the rate of criminal con- victions. The number of appeals filed increased an average of 5.3% annually; the number of criminal convictions rose an average of 2.4% annually. During the initial years following implementation of the Federal sentencing guidelines, the rate at which convicted defendants filed an appeal increased from 12 per 100 convictions during 1987 to 23 per 100 during 1993. After 1993, however, the appeal rate decreased 30% to 16 per 100 convictions, in 1999. The decline in the appeal rate occurred in 72 of the 94 Federal judicial districts. However, in 10 districts (Western Alabama, Connecticut, Southern Georgia, New Jersey, Western New York, Eastern Pennsylvania, Puerto Rico, South Carolina, Western Virginia, and Western Washington) the appeal rate increased more than 20% between 1993 and 1999. --------------------------------- Available data suggest that defendants represented by publicly provided counsel at the time they were ad- judicated of the criminal offense were no less likely to file a criminal appeal than defendants represented by privately retained counsel. Approximately two-thirds of defendants convicted of an offense in U.S. district courts were repre- sented by publicly provided counsel. (See Defense Counsel in Criminal Cases, BJS Special Report, November 2000, NCJ 179023.) The rest were repre- sented by privately retained counsel. The type of appeal filed did not vary substantially by type of counsel representing the defendant: 74% of appeals filed by defendants represented by publicly provided counsel challenged the sentence compared to 71% by those represented by privately retained counsel. Mode of conviction. Two-thirds of criminal appeals were filed by defen- dants who pleaded guilty to at least one of the offenses charged. Three- quarters of defendants who pleaded guilty challenged the sentence imposed, 32% the sentence only, and 43% the sentence and conviction (not shown in a table). By contrast, 81% of defen- dants who were convicted at trial filed an appeal challenging the conviction, 16% the conviction only, and 65% the conviction and sentence. Sentence imposed. Almost all (97%) criminal appeals were filed by defendants sentenced to a term of imprisonment. Defendants who filed a criminal appeal during 1999 received prison sentences that, on average, were more than twice as long as the average prison term received by all defendants sentenced during 1999: 126 months for those appealing compared to 59 months for all defendants. Defendants convicted of drug and weapon offenses received the longest prison terms on average (161 months). In addition, 319 appeals were filed by defendants who received sentences of life imprisonment and 4 by defendants who were sentenced to death. The rate at which defendants filed criminal appeals increased as the length of their prison terms increased. Less than 9% of defendants with a prison sentence of less than 5 years filed a criminal appeal. By contrast, about a quarter of those with a sentence of 5-10 years, almost half of those with a sentence of 10-20 years, two-thirds of those with a sentence of 20-30 years, and almost all of those with a sentence of more than 30 years filed a criminal appeal. Mandatory minimum sentences. Forty-four percent of criminal appeals were filed by defendants subject to a minimum prison sentence prescribed by statute: 25% to a term of 120 to 239 months, 15% to a term of 60 to 119 months, and 4% to a term of at least 240 months or life imprisonment. Almost three-quarters of defendants who filed an appeal and were subject to a mandatory prison sentence had been convicted of a drug offense (not shown in a table). Additionally, 11% had been convicted of a weapons offense and 17% of other offenses. Departures from the Federal sentencing guidelines. About three-quarters of defendants filing a criminal appeal were sentenced within the applicable guideline sentencing range; 21% below the guideline sentencing range; and 2% above the guideline range. Of those defendants who were originally sentenced below the guideline range, 53% received a downward departure from the guidelines for substantial assistance, and 47% received a downward departure for other reasons. Half of defendants who filed an appeal and received a downward departure for substantial assistance had been convicted of a drug offense (not shown in a table). Additionally, 11% had been convicted of fraud offenses, 9%, weapons offenses, 7%, immigration offenses, 4%, racketeering, and 15%, other offenses. Outcome of criminal appeals terminated in U.S. courts of appeal During 1999 U.S. courts of appeal disposed of 10,593 criminal appeals. Of these, 23% were terminated for procedural reasons. Of appeals terminated on the merits of the case, district court decisions were affirmed, at least in part, in 85% of the cases. Appeals filed by the defendant were generally less successful than appeals filed by the government. Of those filed by the defendant, 22% were termi- nated procedurally before oral arguments had occurred. Of those appeals termi- nated on the merits, the defendant succeeded in having the district court decision reversed, at least in part, or remanded for further consideration in 12% of the cases. By contrast, the government succeeded in obtaining a reversal or remand in 60% of the cases terminated on the merits. Nearly 40% of interlocutory appeals were terminated procedurally during 1999. Appeals challenging the conviction, at least in part, were the least likely -- less than 20% -- to result in a procedural termination. Of those cases terminated on the merits, appellants were most successful in having procedural decisions by the district court reversed or remanded for further consideration. During 1999, 33% of interlocutory appeals terminated on the merits of the case were reversed or remanded. Appeals challenging only the conviction were the least successful; only 10% resulted in a reversal or remand. ------------------------------------ Habeas corpus and 28 USC sec. 2255 motions to vacate a sentence After all direct appeals have been disposed of, a Federal offender may file a civil motion challenging the legality of the incarceration. The writ of habeas corpus allows inmates to file petitions challenging the constitutionality of the imprisonment. The Supreme Court has generally held that an inmate can raise most constitutional or jurisdictional claims, not raised on direct appeal, in a habeas corpus petition.*See Brown V. Allen, 344 U.S. 443 (1953) and Stone V.Powell, 428 U.S. 465 (1976).* Additionally, Federal inmates may file petitions to have a sentence vacated, set aside, or otherwise corrected on the grounds that the sentence was imposed in violation of law, the court was without jurisdiction to impose the sentence, or the sentence was greater than the statutory maximum. (See 28 U.S.C. sec. 2255.) Between 1985 and 1999, the number of habeas corpus and sec. 2255 motions to vacate a sentence increased from 4,932 to 9,342. With certain exceptions, the rate at which inmates filed these motions was relatively unchanged between 1985 and 1999. Substantial short-term increases in the filing rate occurred during 1985 and 1996-97. While these petitions represent the offender's last chance to challenge the conviction or sentence, most were dismissed by the district courts. For instance, during 1995, 65% of habeas and sec. 2255 motions were dismissed (see Prisoner Petitions in the Federal Courts, 1980-96, October 1997, NCJ 164615). Of those disposed of following judgments by the district courts, similar to the outcome of direct criminal appeals, 13% were decided in favor of the inmate. --------------------------------- Characteristics of criminal appeals terminated Offense of conviction. Appeals filed by defendants convicted of property offenses -- specifically fraud -- and immigration offenses were among the most likely to be terminated procedurally. About a quarter of appeals by these offenders were procedurally terminated. Of those appeals terminated on the merits of the case, appeals filed by defendants convicted of property and regulatory offenses more often resulted in a reversal or remand than appeals by defendants convicted of other offenses. Nineteen percent of appeals filed by defendants convicted of property offenses -- including fraud -- and 17% of appeals by defendants convicted of regulatory offenses were reversed or remanded, at least in part. By contrast, appeals filed by defendants convicted of immigration, drug, and violent offenses were among the least successful appeals. During 1999, 12% of appeals by immigration offenders, 12% by drug offenders, and 13% by violent offenders resulted in a reversal or remand, at least in part. Type of counsel. Appeals filed by defendants represented by privately retained counsel were more likely to be terminated procedurally than those by publicly provided counsel. A quarter of appeals involving privately retained counsel were procedurally terminated compared to 20% of those involving publicly provided counsel. Of those appeals terminated on the merits of the case, appeals by defen- dants represented by privately retained counsel were slightly more successful than appeals by defendants represented by publicly provided counsel. During 1999, 16% of appeals filed by defendants represented by privately retained counsel and terminated on the merits of the case resulted in a reversal or remand compared to 12% of appeals filed by defendants represented by publicly provided counsel. Mode of conviction. Appeals by defendants who pleaded guilty were more likely to be terminated procedurally than appeals by defendants convicted at trial. During 1999, 27% of appeals by defendants who pleaded guilty were terminated procedurally compared to 13% of those by defendants convicted at trial. Of those appeals terminated on the merits of the case, defendants who were convicted following a trial succeeded in obtaining a reversal or remand more often than those who pleaded guilty. Fourteen percent of appeals by defendants convicted following a trial resulted in a reversal or remand. Impact of reversals and remands on sentences imposed While few criminal appeals resulted in a reversal or remand, in those cases remanded for re-sentencing, the impact of the appeal on the sentence was substantial. During 1999 sentences were changed for 855 Federal prison inmates as the result of appellate action. For the 86 inmates against whom the government prevailed in a sentence challenge, the imposed prison term increased an average of 25 months -- from 93 to 118 months. By contrast, for the 769 inmates who prevailed in a sentence challenge, the prison term was reduced an average of 51 months -- from 139 to 88 months. For some inmates imposed sentences were increased to or reduced from life imprisonment. The sentence for one inmate was increased from 170 months to life imprisonment, and the sentences for 13 inmates were reduced from life imprisonment to an average of 318 months (not shown in a table). Drug and weapons offenders were among those who received both the greatest reductions and increases in sentences. For the 527 drug offenders whose sentences were reduced, the decrease was an average of 55 months from 153 to 98 months. For the 44 drug offenders whose sentences were increased, the increase was an average of 31 months from 124 to 155 months. For the 38 weapons offenders whose sentences were reduced, sentences imposed decreased an average of 46 months from 130 months to 84 months. Methodology Data sources The primary source of the data for tables in this report is the BJS Federal Justice Statistics Program (FJSP) database. The FJSP is presently constructed from source files provided by the U.S. Marshals Service (USMS), the Executive Office for United States Attorneys (EOUSA), the Administrative Office of the U.S. Courts (AOUSC), the U.S. Sentencing Commission (USSC), and the Federal Bureau of Prisons (BOP). The USMS provides data on offenders arrested on Federal charges; the EOUSA provides data on suspects investigated by U.S. attorneys for violations of Federal law and the U.S. attorney's decision to prosecute; the AOUSC provides data on defendants charged with Federal offenses in U.S. district courts and appeals filed of U.S. district court decision; the USSC provides detailed data describing defendants convicted and the sentence imposed; and the BOP provides data on defendants incarcerated in Federal prisons. Data are reported for the Federal fiscal years beginning Octo- ber 1. Composite data For tables in this report, data from several sources were match-merged to supplement a single data source with information from other available data sources. For instance, records of appeals filed and terminated in U.S. courts of appeals provided by the AOUSC were match-merged with data describing defendants processed in U.S. district courts. The district court data corresponding to appellate records were match- merged with USSC data files on defendants sentenced. For appeals filed and terminated in U.S. courts of appeal, approximately 95% of records were successfully matched with the original district court proceeding record. The match rate with the USSC data files was less complete. Of the 9,234 appeals filed during 1999 that represented cases terminated in U.S. district courts as of September 30, 1999, approximately 80% of the appellate records were matched with a USSC sentencing record. Data describing the type of counsel, mode of conviction, and sentence imposed were extracted from the AOUSC data describing district court terminations. Data describing the applicability of mandatory minimum sentences and departures from the Federal sentencing guidelines were extracted from USSC sentencing records. The original appellate data files included data on the type of offense for which the defendant was originally convicted. Data from the Federal Justice Statistics Program are compiled by the Bureau of Justice Statistics from the source files of several Federal agencies. Data can be obtained on CD-ROM from the Bureau of Justice Statistics Clearinghouse, 1-800-732-3277, or from the Federal Justice Statistics Resource Center located on the Internet: http://fjsrc.urban.org The Resource Center, as well as the report and supporting documentation, are also accessible through the BJS website: http://www.ojp.usdoj.gov/bjs The Bureau of Justice Statistics is the statistical agency in the U.S. Department of Justice. Lawrence A. Greenfeld is acting director. BJS Special Reports address a specific topic in depth from one or more data sets that cover many topics. John Scalia, BJS Statistician, wrote this report. Urban Institute staff, under the supervision of Laura Winterfield, and Greg W. Steadman of BJS, provided statistical review. Ellen Goldberg produced and edited the report. Jayne Robinson prepared the report for final publication. April 2001, NCJ 185055 End of file 04/12/01 ih