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Sentencing / Post-Conviction

Tool Available to Law Firms Compares Judge-by-Judge Sentencing Patterns

Posted Mar 7, 2012 5:48 PM CDT
By Terry Carter

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A report unveiled Monday based on a massive new interactive database that looks at criminal sentences rendered judge-by-judge throughout the federal judiciary quickly attracted perhaps as much criticism as praise, but the surest and biggest result is this: The genie is out of the bottle.

The Transactional Records Access Clearinghouse's tool compares sentencing patterns judge by judge, district by district, the New York Times reported. And Monday's report indicates that typical sentences can vary widely in the same courthouse, as well as among districts, for similar crimes.

For years the federal judiciary, through policy set by the Judicial Conference of the U.S. and enforced by the Administrative Office of the U.S. Courts, has blocked dissemination of information on decisions by individual judges. In fact, though the Administrative Office of the U.S. Courts provides such data annually to the U.S. Sentencing Commission, it insists on a memorandum of understanding that prohibits further distribution.

Critics have been quick to complain that the TRAC report falls short in various ways, such as wrongly assuming that large numbers—it looks only at judges who have rendered 40 or more sentences in a given area such as drugs or white-collar crime over a five-year period—smooth out inevitable differences in various cases.

“The variety of factors relevant to sentencing is as broad and varied as human existence,” says James Felman, a criminal defense lawyer and name partner at Kynes, Markman & Felman in Tampa, Fla., and the ABA’s liaison to the U.S. Sentencing Commission.

But the critics tend to agree that getting the information out into sunlight is a good thing.

“This just barely scratches the surface, but having the data out there now, from a scholarly standpoint, is big,” says Russell Wheeler, former deputy director of the Federal Judicial Center (the federal judiciary’s think tank) and now a visiting fellow at the Brookings Institution and an adjunct professor at American University

TRAC’s report is titled to sell: “Surprising Judge-to-Judge Variations Documented in Federal Sentencing.” One example looks at drug sentences handed down by eight judges in more than 40 cases each over the past five years in the Northern District of Texas, which includes Dallas and Fort Worth. The lowest median sentence from one judge was 60 months, and at the other extreme, the median for another judge was 160 months. Sentences by the other six judges also varied significantly.

In the District of Minnesota, on the other hand, the study found little variation in drug sentencing by the nine judges, with a low median of 52 months and a high of 65. In a similar example, the two district judges in Rhode Island had the same median sentences.

Pointing to the significant variation in Texas, the report states: “Assuming the drug cases handled by these eight judges were assigned on an approximately random basis, this variation is hard to explain.”

Part of any explanations probably will include courthouse cultures and prosecutorial policies, such as whether low-level participants are pursued in drug cases, as the so-called mules are in the border states, or are let go in the chase for bigger fish, as in the Southern District of New York, Felman says.

TRAC also highlighted white-collar crime sentences by eight judges in the Northern District of Illinois, where median sentences by one judge came in at zero, compared to a high of 39 months by another.

The database offers interactive analyses of sentences in more than 370,000 cases over the past five years.

TRAC, based at Syracuse University and with a satellite office in Washington, D.C., managed to gather the information after doing battle in four Freedom of Information Act lawsuits, two of which are ongoing. Its database includes data from various areas of the federal government, and some of it, like the new tool for analyzing individual judges and sentencing patterns, is premium. TRAC is selling a access to the entire database to law firms, with annual fees starting at $770 for firms of up to five lawyers and starting just under $4,000 for those with more than 50 lawyers.

The report was authored by TRAC co-director David Burnham, a former New York Times investigative reporter best known for breaking the Serpico stories on corruption in the New York City Police Department and his books criticizing the Justice Department and the Internal Revenue Service. The data analysis was done by co-director Susan Long, a professor of managerial statistics at Syracuse University's Whitman School of Management.

Burnham expects the new judge database to be used as much by lawyers in the trenches as by scholars.

“Criminal defense lawyers often go by word-of-mouth in the courthouse to know what to expect from particular judges,” Burnham says. “But a judge might be so personable as to be seen as easygoing, and the gossip gets it wrong. The data doesn’t.”

Burnham argues that the disparities in sentencing within some courts and among some districts, though not problematic throughout the country, brings into question the administration of equal justice under law. But, ironically, the tempest stirred up by TRAC’s research and new database might re-energize efforts to return to some version of mandatory sentencing guidelines.

The Supreme Court ruled in 2005 that judges could not be bound by the guidelines because that involved considering facts not presented to juries. The guidelines were then made advisory in nature.

“It’s a one-way rachet, and that means up as far as sentences are concerned,” says Felman, a prominent critic of mandatory guidelines. “We’ve got to find some way to get our prison population down, and giving discretion to judges is the only way.”

But that is how democracy works, says Frank O. Bowman III, a professor at the University of Missouri School of Law and proponent of restoring more control over federal sentencing to the Sentencing Commission, Congress and others. He agrees that a return to guidelines likely would lead to longer sentences.

“Then we need every couple of decades or so to recalibrate and scrape off the barnacles,” he says. “It will get messy and creep up again, probably. But that is not a particularly compelling argument.”

TRAC’s new tool is quickly stirring the mix. Already there are calls for release of even more data, which would include judge-by-judge information based on even more granular data such as sentencing guideline calculations, enhancements and mandatory minimums.

A comment under the name of a senior federal district judge at Ohio State University law professor Douglas Berman's Sentencing Law and Policy blog suggested such increased transparency. "I subscribed this morning to the complete TRAC data set," the commenter wrote. The data is extensive and should provide academics with a great resource. However, the Sentencing Commission data would be more detailed. The cat, as they say, is now out of the bag. There is no longer any reason for the Sentencing Commission not to release judge-specific data.”

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