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February 21, 2005

Collecting, parsing and sharing post-Booker data

As stressed in much of the USSC testimony last week, the role and importance of the US Sentencing Commission in collecting and disseminating post-Booker data cannot be overstated.  (This was one focal point of my USSC testimony and recent blog posts here and here.)  Indeed, I recently received a note from an insightful reader that stated this point so eloquently I am moved to quote his sentiments:

The Commission must take the lead in documenting statistically-valid data in order to help judges better understand national sentencing patterns.  Only then can we hope for penal consistency that falls in line with the sentencing factors outlines in 18 USC 3553(a).

But, as suggested in prior posts, such data collection is easier said than done, especially if the lines between guidelines, departures and variances end up becoming  blurry (as discussed here and here).  Further, at the USSC hearings, Professor Steve Saltzberg and USA Robert McCampbell both insightfully stressed that we ought to be concerned more with the magnitude of variances than the raw number, since large variances pose a much greater risk of disparity than small ones.  (McCampbell earned extra points in my book when he actually quoted directly from my article Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000), where I suggested at pp. 96-101 that appellate review of departures focus more on the extent of departure rather than on the threshold decision to depart.)

Of course, in this context, it should be highlighted that the USSC is not the only institution collecting data.  Indeed, at the USSC hearings, USA Robert McCampbell noted that DOJ "will be collecting data," and McCampbell interestingly went to great lengths to stress that DOJ's internal recording form "does not include a way to report the name of the judges ... [because the] individual name of the judge won't help all of us ... make the policy decisions we need to make." 

Though I suspect most judges will generally be glad to hear that DOJ is not "taking names," it seems worth noting that a lot of state sentencing systems include so called "judge-identifiers" in their sentencing data set.  But, putting that issue aside, I wonder if DOJ might consider making public the data it collects as the post-Booker world develops.  More generally, I hope that any and all institutions besides the USSC that are tracking post-Booker developments will generally have a sharing attitude. 

February 21, 2005 at 04:05 PM | Permalink

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