Wide Sentencing Disparity Found Among U.S. Judges

Wide Sentencing Disparity Found Among U.S. Judges
The New York Times by Mosi Secret  -  March 5, 2012 

A new analysis of hundreds of thousands of cases in federal courts has found vast disparities in the prison sentences handed down by judges presiding over similar cases, raising questions about the extent to which federal sentences are influenced by the particular judges rather than by the specific circumstances of the cases.  The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary.  In the Eastern District of New York, for example, the 28 judges in the study delivered a median sentence of 24 months for drug cases in the past five years. But there were disparities: Judges Jack B. Weinstein and Kiyo A. Matsumoto gave median drug sentences of 12 months, while the median drug sentence for Judge Arthur D. Spatt was 64 months.  The Eastern District ranked 17th among more than 80 districts in drug sentencing disparities.  Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers.  In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005.  The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government.  The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.

The Southern District of New York ranked eighth in white-collar sentencing disparity. Some judges, like John F. Keenan and Sidney H. Stein, sentenced most of their white-collar defendants to no time at all, while the typical sentence of another judge, Lewis A. Kaplan, was almost 23 months.  The report said that in the Northern District of Texas, the median prison sentence for convicted drug defendants from some judges was as low as 60 months. A typical sentence for another judge was nearly three times as long, at 160 months.  Former federal judges and sentencing experts pointed to what they said were the limitations in analysis of the data and cautioned against quick conclusions.  “This kind of data doesn’t show very much,” said Nancy Gertner, a former judge in Federal District Court in Boston who favors releasing data about judges. “It doesn’t begin to address caseload or prosecutorial decisions. It doesn’t begin to address disparity.”  Prosecutors often recommend lower sentences for defendants who cooperated with the government to build cases against others. Some sentences might be a result of plea agreements.  The TRAC study did not separate cooperation agreements and plea deals before making calculations on disparities, but the database and analysis tool does include case-by-case details showing which cases fall into those categories.  Without a more detailed analysis of data, the judges and sentencing experts who were interviewed said they worried about the possibility of drawing judges into a heated debate driven not by policy decisions but by posturing of politicians who want to appear tough on crime.  “The unduly harsh judge escapes concern while the lenient judge gets hit,” said Douglas A. Berman, a professor at the Moritz College of Law at Ohio University, who closely follows sentencing law and policy.  Judge Gertner said, “The notion of the data surfacing in a rational, thoughtful world would not be a bad idea.” But she cautioned that she had “concerns that it will be used as part of this vitriolic political battle.”  The TRAC report seemed to anticipate the political stakes and cautioned against using the data to remove judicial discretion.  Congress sets penalties for federal crimes. For much of the history of the courts, federal judges, who are appointed by the president and confirmed to life terms by the Senate, were free to hand down sentences as they saw fit.  Congress passed the Sentencing Reform Act in 1984, spurred by evidence of sentencing disparities. The law established the federal sentencing commission, which wrote mandatory guidelines for judges to follow as they punished convicts, with similar sentences for offenders having comparable criminal histories who are convicted of the same crimes.  For example, a defendant convicted of conspiracy to possess and distribute narcotics could face a sentence of 108 to 135 months under the guidelines. The range could be raised if the defendant played a leadership role in the crime or lowered if the defendant had a history of drug abuse or was a minor player in the crime.  But after a challenge to the constitutionality of requiring sentencing judges to consider facts that were not weighed by a jury, the Supreme Court untethered judges from the guidelines with its decision in the case of United States v. Booker in 2005. The sentencing guidelines are now advisory, not mandatory.  Judges again gained broad discretion, though in practice many still sentence defendants within the guideline ranges.  Still, questions again surfaced about whether judges with such latitude would treat convicted defendants fairly.  As recently as last October, a House subcommittee conducted a hearing titled “Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker.”  In the past, such hearings stoked controversy.  In a House Judiciary subcommittee meeting in 2002, Judge James M. Rosenbaum, then the chief District Court judge in Minnesota and a Ronald Reagan appointee, testified in support of legislation to decrease penalties for certain drug offenses.  Republican members of the committee made an inquiry into his sentencing history after the hearing. Congress then passed legislation that limited judicial discretion and authorized the collection of sentencing data on individual judges. The confrontation grew so heated that Chief Justice William H. Rehnquist, a conservative, came to the defense of the judiciary in a public statement. Justice Rehnquist warned that collecting data on judges’ sentencing practices “could amount to an unwarranted and ill-considered effort to intimidate individual judges.”  The TRAC data, which will be updated monthly, and a tool to analyze the data are available on the TRAC Web site for a fee.  “It’s profoundly valuable that TRAC will assemble this data,” Mr. Berman said. “But now it’s profoundly important that serious researchers get to the data.”