Powerful New Tool Reveals Federal Sentencing Problems
The ground-breaking service is a first of its kind and has been an eye-opener about what’s really going on in federal sentencing.
This new tool is called JUSTFAIR (Judicial System Transparency Through Federal Archive Inferred Records), and it was developed by the Institute for the Quantitative Study of Inclusion, Diversity, and Equity (“QSIDE”) in Williamstown, Massachusetts. It’s a collection of nearly 600,000 records on federal sentencing gathered from several public sources and then refined to provide important sentencing data that couldn’t have been found in just one place before. It links information about defendant demographics, their crimes and sentences, and – most importantly – details about the judges who imposed the sentences.
It’s the first large-scale database that links all of this information – and it’s free. While the U.S. Supreme Court held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), that “the First Amendment guarantees of free speech and press ... prohibit the government from summarily closing courtroom doors,” the government has made it nearly impossible for the public to see what does go on in the nation’s federal courts by dividing up this information in bits and pieces and storing it at several locations. Sometimes the same agency stores federal sentencing data in two different places in the same building, none of it linked together.
For a person to exercise his constitutional right to access courtroom proceedings, it might take countless hours of research just to gather some basic information. JUSTFAIR puts all of that together in one place, at qsideinstitute.org/justfair.
The purpose of JUSTFAIR
The big idea behind JUSTFAIR is to expose the sentences handed out by federal judges. Included in the data is not only the names of the judges but also details about the defendant, such as race. One thing researchers found in developing JUSTFAIR was that some federal judges give higher sentences to minorities versus White defendants.
A graph revealed by researcher Chad Topaz from QSIDE showed this trend. “30+ judges display ... statistically significantly different sentencing behavior by race,” he wrote.
In order to figure this out, the public would have to somehow attend hundreds of thousands of federal proceedings in court every year. That’s because “the opacity of the federal criminal court system impedes the public in a number of ways,” QSIDE said in its executive summary detailing JUSTFAIR. “The unavailability of judge data is one of the most frustrating aspects of the study of federal sentencing,” the summary explains.
There are 94 federal district courts across the country and in the U.S. territories, such as Puerto Rico and Guam, and each state has at least one federal court, with some states having up to four of them (CA, NY, and TX). JUSTFAIR gathers statistics from all of these courts on (1) demographic characteristics of the defendant, (2) statutes of the convictions, (3) factors influencing the recommended sentence, (4) a breakdown of the sentence, including fines, probation, and prison time, (5) the court and date of sentencing, (6) the name and background information, and (7) which president appointed the judge.
The creators of JUSTFAIR say these details are important because federal sentencing was supposed to be a transparent and fair process. After all, that’s why Congress created the U.S. Sentencing Commission (“USSC”), which in turn created the U.S. Sentencing Guidelines (“Guidelines”) to provide more uniform sentencing across the country.
Prior to the Guidelines, sentencing judges had broad discretion to impose any sentence they wanted within the statutory limits. Often, sentences for the same crime would vary widely based on the location of the court. Even though the Guidelines are only “advisory” and judges still have discretion, the Guidelines are given great weight in determining the proper sentence and in deciding whether a sentencing judge abused his discretion imposing a sentence.
The problem, JUSTFAIR creators say, is that judges are still not held accountable because the USSC blocks judges’ information from the public. JUSTFAIR then had to dig into numerous sources, all publicly available, to fill in the holes.
To create JUSTFAIR, researchers consolidated data mainly from five sources: (1) the USSC, (2) the Federal Judicial Center’s Integrated Database (“FJC”), (3) the Public Access to Court Electronic Records System (“PACER”), (4) Wikipedia (for background on the judges), and (5) the FJC’s Biographical Directory of Article III Federal Judges.
Here’s what JUSTFAIR includes from each source:
• United States Sentencing Commission: The USSC is an independent agency of the federal court system created by Congress under the Sentencing Reform Act of 1984. Its mission is to “collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues.” The USSC also serves as an information hub on federal sentencing for entities like Congress and the courts, as well as for academic purposes and criminal defense lawyers.
The information the USSC collects is open to the public for free. An entire data set can be downloaded with a median size of approximately 73,000 records per year archived, beginning in 2001. From the thousands of variables available in the database, JUSTFAIR narrowed them down to just 16 for each record.
• Federal Judicial Center: The FJC is an agency of the U.S. federal court system that tracks details of civil and criminal cases, appeals, and bankruptcies. It was established in 1967 and dedicated to the “research and study of the operation of the courts.” While the FJC’s records date back to the year 1900, JUSTFAIR’s data compilation begins with 2001, to align with the data from the USSC. Even then, this includes almost 1.5 million records.
Most of the FJC data is about identifying the sentencing court, the total prison time given, and the statute of conviction. Researchers also used FJC’s Biographical Directory of Article III Federal Judges to include some background on the sentencing judges, such as length of service, education, professional career, the president who appointed them, and the confirmation process.
• Public Access to Court Electronic Records: PACER is the service that directly accesses federal court dockets and allows access to some court documents. It was established in 1988 but wasn’t made available to the public until 2001. There are several limitations to PACER in gathering data. First, it’s not free. PACER charges 10 cents per page accessed (and sometimes more), and court documents are often several pages. Next, each court maintains its own records database. Finally, PACER requires a “docket number” to access a case docket.
Juriscraper combined with PACER can reveal data on the sentencing judges by their initials. JUSTFAIR uses Juriscraper to complete the docket number to include the extension with the judge’s initials. For example, docket number 2:01-CR-00071 entered into Juriscraper for the U.S. District Court for the District of Maine returns “2:01-CR-00071-DBH USA v. BLAKE.” The “DBH” extension stands for Judge David Brock Hornby.
• Wikipedia: Wikipedia contains a master list of U.S. district courts, and from it, JUSTFAIR’s researchers obtained judges’ names, life spans, active years, and even a judge’s dedicated Wikipedia site (if available). Using the judge’s initials on the docket (noted above), researchers were able to link judge names from Wikipedia to those initials.
All cleaned up and verified, there were 1,639 active federal judges from 2001 to the present. Wikipedia, unlike FJC’s database, contains information for the several judges of the district courts in the U.S. territories. FJC doesn’t count those judges because territory district judges are not “Article III judges” under the U.S. Constitution.
All of this data were processed at the Ohio Supercomputer Center through the Mathematical Biosciences Institute at The Ohio State University. Researchers say their data are 98.1 percent accurate. To verify the data, JUSTFAIR randomly sampled records from CourtListener and compared the data. CourtListener is a free service that provides archived access to the text of 3.6 million judicial opinions collected from PACER. They limited their searches to only criminal cases, and if there wasn’t a match, researchers looked to other sources for verification, like news outlets.
More than one judge assigned to a case created a problem. When a different judge got assigned to a case in a later postconviction proceeding, this threw off the judge data. JUSTFAIR’s researchers manually corrected the database in these cases.
Some courts are not included, mostly because they don’t provide judge information on sentencing. This includes the S.D.W.V., S.D. Tex., N.D. Ill., M.D. Tenn., E.D.N.C., D.N. Mar. Is., and D. Guam.
A Critical Finding by JUSTFAIR
As researcher Chad Topaz noted, federal judges imposed different sentences for similarly situated defendants based on race, according to the data revealed by JUSTFAIR. For example, if Judges A and B are in the same district and Judge A’s treatment of minorities compared to Judge B’s is vastly different, this suggests that Judge A treats minorities more harshly.
However, researchers caution that there are variables not in JUSTFAIR that could account for some disparity by race in sentencing. But they say the data suggest that racial disparities at sentencing are widespread. “Once data about how judges differ on the basis of race are publicly released, that may place pressure on judges to change their sentencing patterns so that they treat different races equally,” JUSTFAIR’s executive summary says.
Then again, researchers noted that once judges are exposed they may alter their sentencing patterns to reduce the appearance of bias, another unwanted consequence. Still, the benefits of transparency outweigh the costs, researchers say. “If that data indicate that judges are outliers in one direction or another, it seems to me more likely than not that the scrutiny of those judges will be more likely to make sentencing genuinely consistent and fair than to achieve a false consistency,” one researcher wrote.
JUSTFAIR also found that Republican-appointed federal judges handed down longer sentences to minorities than did Democratic-appointed judges. Lower income defendants also got hit with longer sentences than their richer counterparts, data reveal.
By combining several reliable and publicly accessible sources on federal sentencing, JUSTFAIR provides as complete a picture as possible about what goes on in the nation’s federal courts at sentencing. This is the first time this data have been revealed to the public, and it should expose some of the inequalities and injustices of federal sentencing that organizations and agencies have tried to pinpoint and fix for decades.