Tens of Thousands of Sentencing Decisions Are Hidden Within PACER, Hindering Access by Lawyers and Defendants
by Dale Chappell
Thanks to technology, judges’ decisions in the thousands of sentences they impose each year get isolated in an unsearchable database called PACER — Public Access to Court Electronic Records. While the public may be able to access a judge’s sentencing decision on PACER, they can only do so if they know exactly where to look.
Traditionally, judges made their sentencing decision openly in court, as required by the law, and then their words were written in sentencing opinions that were posted in a publicly available collection of opinions called the “Federal Supplement.” Those days are gone. Now, the transcripts of a judge’s reasons for the sentence imposed are filed in PACER without any opinion written or posted in the Federal Supplement.
In fiscal year 2018, there were more than 73,000 convictions in the federal courts, according to the Administrative Office of the U.S. Courts. That’s at least 70,000 sentences imposed in the federal courts in just a single year. However, a search of Westlaw, a subscription service that collects court opinions from the Federal Supplement and other reporters, turned up only about 600 opinions in the sentencing courts using the federal sentencing statute, 18 U.S.C. s. 3553(a), as the keyword.
For example, should a defendant or his lawyer want to search sentencing decisions to see how much weight judges have been giving to the controversial and hotly-debated child pornography guideline, 2G2.2, he would find barely a fraction of the decisions out there on the issue, at least in the reporters. Thus, any sentencing memorandum filed by that lawyer would be lacking solid evidence to convince the sentencing judge that most other judges have not been following the guideline. All the lawyer might be able to point to is the handful of opinions in the reporters. Much of what the lawyer needs is in the sentencing transcripts filed in PACER.
But, contrary to its title, PACER is not “free.” Anyone who wants to access documents on PACER, including the public for whom it was created, must pay. And the costs quickly add up.
PACER charges for all the pages of a document, even if a person only wants to see some of them. Transcripts can be hundreds of pages, which makes PACER a very poor alternative to opinions in the reporters.
The federal sentencing statute requires that a federal sentencing judge explain on the record several factors he considered in crafting the sentence he imposed. This includes the “nature and circumstances” of the offense and the defendant, the need for the sentence to “reflect the seriousness of the offense,” the ability of the sentence to “afford adequate deterrence” to others, and the need to “protect the public.” A sentencing judge is also required to “avoid unwarranted sentence disparities” among similar defendants.
But how can anyone be assured any of this is happening when the judge’s reasons for imposing the sentence are tucked away in PACER. Having the decisions of sentencing judges reduced to opinion that are posted in searchable and publicly available sources, such as the reporters, is critically important to ensure judges are following the law and that defendants are being sentenced properly. Merely posting the sentencing proceedings in PACER is not enough, some say.
Some judges have been swayed. U.S. District Judge Jed Rakoff cited an article written by his former law clerk, Brian Jacobs, in the July 2019 issue of Forbes magazine, exposing this dilemma. Rakoff said in a recent opinion, sentencing a pipe bomb terrorist that was filed in a reporter, “I am setting forth my thoughts in a written opinion” because of what he said were “some difficult and somewhat recurring issues in sentencing.” United States v. Sayoc, 388 F. Supp. 3d 300 (S.D.N.Y. 2019).
Hopefully, other judges will be persuaded to memorialize their sentencing decisions in opinions made available to the public in truly open-access searchable sources such as reporters like the Federal Supplement, in an effort to make federal sentencing transparent and more consistent.
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