Genghis Khan and sentencing

Photo credit:  frans 16611"s photostream per Creative Commons license.

Photo credit: frans 16611’s photostream per Creative Commons license.

The authors of The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, discussed in the last post, looked at the important question of the behavior of federal district judges when they sentence people.  Among other things, the authors concluded that the political party of the President who nominated the judge was a good proxy for judicial ideology.  The authors then looked to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University to provide data about the sentencing decisions of individual judges.  After that, the authors matched up sentencing decisions by individual judges and the party affiliation of the President who nominated the judge.  The authors then ran a statistical analysis (once again using TRAC resources) to determine if there were differences in sentence lengths between judges nominated by Republican Presidents and judges nominated by Democratic Presidents.  Among other  things, the authors found that “there is evidence of ideological influence, with judges appointed by Republican Presidents generally imposing heavier sentences when other influences are corrected for.  The ideological influence is modest, however, . . . .”

For now, I intend only to highlight four things.  I hope to stay out of the weeds.  Here goes.

Point One

Federal courts have a lot of sentencing data, but there is a big problem collecting the data and putting into a useable form.  Because the TRAC data contains identifying information for individual judges, it is a unique and valuable resource.  At present, there is no other such information for the entire federal judiciary that is readily available.  The effort it took to accumulate this data and then put it into a useable form was truly gargantuan.  I laud TRAC for its efforts.

Point Two

There are problems with the TRAC information.  See Tracking TRAC’s New Sentencing Data, 25 Federal Sentencing Reporter No. 1 (October 2012).  Many of those problems are, however, vastly overblown as evidenced by the fact that attacks on TRAC are generated largely by defense lawyers.  They have a motive to trash anything that suggests that judicial discretion at sentencing is a bad thing.

The foregoing said, real problems persist.  In my view, the most significant problems with TRAC reports are these:  (1)  one has to pay for the TRAC data and the cost is not insubstantial;  (2) a user agreement must be signed that limits how the user may use the TRAC reports; (3) the TRAC reports do not separately address departure and variance motions that frequently drive sentencing outcomes.

There is a better way.  The United Sentencing Commission has data identifying each federal district judge by name and it has specific data for each sentence imposed by that judge.  In short, the Sentencing Commission data is more refined than the TRAC data.  Unfortunately, the Sentencing Commission will not normally release this data.  The only way to obtain the data is for the chief judge of the district to request the release of the data or for each identified judge to consent to the release of the data.  Since that data was generated by a judge publicly sentencing a defendant, there is no good reason not to make that data freely available to anyone who wants it.

To date, only the District of Nebraska (my district) has made that data freely accessible to the public.  See  United States District Court District of Nebraska, Judges’ Sentencing Data.  Among other things, the Sentencing Commission data for the judges of the District of Nebraska shows that for “drug cases, there appears to be a marked difference between sentences imposed in Lincoln (higher) and sentences imposed in Omaha (lower).”   Richard G. Kopf, Judge-Specific Sentencing Data for the District of Nebraska, 25 Federal Sentencing Reporter No. 1, p. 51 (2012).*  Why an analysis of the sentencing practices of judges in two courthouses no more than 60 miles apart reflects big differences in sentence outcomes is a grave cause for concern.

Point Three

It is critically important to remember that the authors of The Behavior of Federal Judges were looking at the data from a national perspective.  Thus, whether ideological differences matter more than modestly in individual districts does not appear to have been clearly addressed.

If you are a defendant, the existence of only modest ideological influences, when derived from an average of all the district judges in the nation, is not comforting.  In the district where the sentence will be imposed, a defendant wants to know whether he has drawn a Republican Genghis Khan.

The following chart (showing five years of data ending in September 2012) obtained from TRAC (for all sentence types) illustrates just how widely divergent sentence outcomes can be in the same district:


(Although I have long ago shed my affinity for the Republican party, it appears that I am, nevertheless, the District of Nebraska’s Genghis Khan.)

Point Four

Whether one uses the TRAC data or data from the Sentencing Commission, when it comes to sending people to prison it is important to concentrate on what is going on in each district and in each courthouse within each district.  Given the broad and national scope of their endeavor, it is perfectly understandable why the authors of The Behavior of Federal Judges did not drill down to the district level.  For federal sentencing judges, we lack any similar excuse.


*The Federal Public Defender lobby suggests that the Nebraska disparity can be explained by differences in the use of Rule 35(b) sentence reduction motions that come after initial sentencing–Lincoln prosecutors use them more and Omaha prosecutors use them less, so say the FPDs.  However, my analysis of the data (cases numbers, section 5K1.1 motions, and Rule 35(b) motions), which I have shared with our FPD, suggests that is highly unlikely that any such difference is substantial enough to explain away the disparity.   So far, I have heard no rebuttal to my analysis.  As I said earlier, for this post, I want to stay out of the weeds.  So, I will go no further on this point.

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