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January 23, 2009

Can and will judges, defense attorneys and academics now get lots of sentencing data from BOP, DOJ and the USSC?

I was pleased to discover at WhiteHouse.gov the text of this memorandum from President Obama, titled "Transparency and Open Government." Here are some snippets:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government....

My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public....

Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. Executive departments and agencies should also solicit public input on how we can increase and improve opportunities for public participation in Government....

Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector. Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation.

This important new memo is both inspiring and especially important to the operation of the federal criminal justice system.  I have heard from many judges and defense attorneys that many federal agencies and departments have resisted requests for information concerning prosecution and punishment policies and practices.  In light of this new memorandum, judges and defense attorney and academics should now feel empowered to expect and demand much greater transparency and openness from institutions like the Bureau of Prisons, the Justice Department, and the U.S. Sentencing Commission.

To its credit, the Sentencing Commission has been a lot better with transparency and openness and collaboration over the last five or six years.  Yet there is still a lot more that can and should be done to fully effectuate the goals and principles of this new memorandum.  And, in sharp contrast, the Bureau of Prisons and the Justice Department have had a very poor record recently when it comes to transparency and openness and collaboration.

I stress these points, and start to become more optimistic about the future of federal criminal justice, largely because of this terrific article entitled "The Black Box" by Professors Marc Miller and Ron Wright just out in the Iowa Law Review.  Consider these passages from the start and end of the article:

We believe that the internal office policies and practices of thoughtful chief prosecutors can produce the predictable and consistent choices, respectful of statutory and doctrinal constraints, that lawyers expect from traditional legal regulation. Indeed, we believe that internal regulation can deliver even more than advocates of external regulation could hope to achieve....

Whatever precise form it takes, greater transparency in a prosecutor’s office bodes well for the quality of internal regulation. The obligation to explain and the aspiration to make consistent and principled decisions can both thrive in an environment that embraces transparency in many forms. These can become our hopes when the black box of prosecutorial choices becomes more translucent.

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January 23, 2009 at 06:39 AM | Permalink

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