Legal Advocate Wrongly Cites Federal Prison Population Grew 1,000 Percent Since 1980

By Melanie Arter | July 14, 2014 | 11:58 AM EDT

FILE - This Monday, July 13, 2009 file photo shows the Butner Federal Correctional Complex in Butner, N.C. (AP Photo/Gerry Broome)

( – A legal advocate for poor federal criminal defendants testified Friday before the House Judiciary Committee’s Over-Criminalization Task Force that the federal prison population has grown by 1,000 percent since 1980 and at a rate three times higher than that of state prison populations in the past 10 years.

However, that number is an overestimation, according to statistics he provided in written testimony to the task force.

“The federal prison population has increased by 1,000 percent since 1980, and in the past 10 years, it’s increased at a rate three times the rate of state prison populations, and this is at a time of historically low crime rates. So it’s not an increase in crime that’s driving the increase in incarceration,” said David Patton, executive director and attorney-in-chief of Federal Defenders of New York, a non-profit organization that provides legal representation for people charged with federal crimes who cannot afford an attorney.

In his written testimony, Patton explained that the federal inmate population grew from 24,252 in 1980 to 209,771 in 2010, citing statistics from the University of Albany, Sourcebook of Criminal Justice Statistics Online. According to his statistics, though that's an increase of only 765 percent.

According to an April 15, 2014 report by the Congressional Research Service, titled, “The Federal Prison Population Build-up: Overview, Policy Changes, Issues and Options,” the number of inmates in federal correction facilities grew from 25,000 in fiscal year 1980 to over 219,000 in fiscal year 2013. That shows an increase of 776 percent, which is still not as high as the 1,000 percent that Patton cited.

The report cites changes in federal sentencing and correctional policy since the 1980s for the “rapid growth in the federal prison population.” These changes include: increasing the number of federal offenses subject to mandatory minimum sentences, changes in the federal criminal code that have made more crimes federal offenses, and eliminating parole.

“The federal criminal justice system has become remarkably promiscuous by any measure – whether it’s by the size of the federal criminal code, which has doubled since 1970, whether it’s the sheer number of people arrested and prosecuted for federal offenses, which has tripled since 1980, or most significantly, if measured by the number of people the federal government imprisons,” Patton said.

Patton said the increase in federal incarceration was not due to an increase in crime, but rather “1) a vast increase in the number of federal prosecutions of basic routine crimes that were once solely the province of state and local law enforcement, and 2) vast increases in the severity of federal sentences largely driven by mandatory minimums that prevent sentencing judges from imposing what would otherwise be reasonable commonsense appropriate levels of punishment.”

He said 2.7 percent of federal criminal defendants go to trial, compared to a trial rate five times higher 30 years ago.

“The disappearing trial rates correspond precisely with the enormous increase in power we have given prosecutors via severe and mandatory sentencing regimes,” Patton said.

“Prosecutors have always had enormous discretion in charging, but they now have full control over many cases from start to finish, and they control whether to charge a mandatory minimum or not – entirely at their discretion – and that power is used largely to create a spread in the sentence that someone will receive if they plead guilty versus if they got to trial,” he said. “That spread can be enormous – orders of magnitude 10, 20, 30 years or more.”