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December 12, 2017

Curious reminder of limits of empirical evidence showing federal sentencing disparity before modern guideline reforms

ProPublica has this lengthy new article that seems way too eager to suggest that some empirical shenanigans fester below the Supreme Court's 1989 Mistretta opinion upholding the structure of the Sentencing Reform Act of 1984. The full headline and subheadline showcases the ominous theme of this reporting, "Suspect Evidence Informed a Momentous Supreme Court Decision on Criminal Sentencing: The U.S. Sentencing Commission helped send more people to prison for longer terms. It’s a shame it was created to address a nonexistent crisis. Here’s how the Supreme Court got misled."  I fear that ProPublica's valuable push to fact-check SCOTUS opinions has, in this case, led to some problematic assertions about the history of sentencing reform and Mistretta.  Though this blog space is not an ideal setting for nitpicking this long ProPublica piece, the article's start (with one sentence emphasized) provides a flavor for its points and problems:

More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes.  The worries were many.  Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants.

In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.  The commission would set firm punishment rules, called “guidelines,” for every offense.  The measure, signed by President Ronald Reagan, largely stripped federal judges of their sentencing powers; they were now to use a chart to decide penalties for each conviction, with few exceptions.

Five years later, a legal challenge to the sentencing commission wound up before the U.S. Supreme Court.  In a case titled Mistretta v. U.S., the court was asked to consider whether Congress had overreached by taking on what seemed to be a role for the judiciary.  In an 8-1 decision, the justices determined that the sentencing commission was constitutional.  And they took care to say that the commission was also needed — to end the widespread and “shameful” sentencing disparities produced by the biases of individual judges.

Mistretta was a momentous decision, but it’s now clear the high court relied on evidence that was flimsy and even flat-out wrong.  The justices, in issuing the 1989 decision, had cited a single congressional report in concluding that there were disturbing and unacceptable sentencing disparities that needed to be addressed.  That single report, in turn, was based primarily on two studies conducted in the early 1970s, both deeply flawed.

Critically, the Mistretta case legally and practically did not turn at all on whether researchers had adequately proven pre-guideline sentencing disparity or whether Congress relied on "flimsy" evidence when enacting the Sentencing Reform Act.  Constitutional issues, not empirical ones, were the focal point of Mistretta.

To its credit, this ProPublica article does a nice job spotlighting problems with the disparity evidence cited by Congress in the legislative history of the Sentencing Reform Act.  But Kate Stith and Jose Cabranes made this point effectively two decades ago in Fear of Judging, and sentencing reforms in the 1970s and 1980s, at both the federal and state level, were driven by (and could be justified by) a lot more than just concerns about sentencing disparities.  Moreover, and perhaps most important, the few cites by Congress to studies about sentencing disparities were really only the tip of the evidentiary iceberg: as Norval Morris stressed in this great 1977 piece, he started effectively documenting "gross and unjust variations in sentences imposed on convicted criminals" in the 1950s.  As he put it, by the mid 1970s, the decade before Congress enacted the Sentencing Reform Act, "the data on unjust sentencing disparity [had] indeed become quite overwhelming and will ... convince anyone who will take the time to study them."   

In short, I think it deeply misguided to label the concerns about sentencing disparities before modern reforms a "nonexistent crisis," and it is even more problematic to suggest that these concerns were the only reason Congress passed the SRA or the only reason Mistretta came out as it did.  I am always grateful for journalism seeking to thoughtfully unpack federal sentencing reforms and Supreme Court sentencing rulings, and there can and should be continued debate about whether and how modern sentencing reforms may have increased rather than reduced certain types of sentencing disparities.  But the notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny, nor can the suggestion that SCOTUS was "misled" by bad data in its Mistretta ruling.

December 12, 2017 at 10:10 AM | Permalink


"But the notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny, nor can the suggestion that SCOTUS was "misled" by bad data in its Mistretta ruling."

That's like, just your own opinion man. What do you know about sentencing anyway? It is not like you are an expert on the topic or something. If it weren't for investigative journalists we would still be living in an era where animals have human rights, the world was warming due to human-caused climate change, and women everywhere were so congenitally unable to lie that the merest allegations of the slightest sexual misconduct caused U.S Senators to resign from office. However, we know that democracy dies in darkness and thanks to the unsparing and nobles efforts of heroic journalists we had the bright light of their truth to guide us away from those bad old days. So hush, you. You'll have a right to speak after you too have graduated from a community college.

Posted by: Daniel | Dec 12, 2017 12:37:27 PM

Professor Berman (Doug),

Thanks for taking the time to critique this report. For whatever it is worth, I share your concerns.

All the best.

Rich Kopf

Posted by: Richard Kopf | Dec 12, 2017 1:53:41 PM

I agree with Judge Kopf. Professor Berman's discussion about the concerns underlying the creation of sentencing guidelines is very useful and informative.

Posted by: Elaine Mittleman | Dec 12, 2017 2:14:26 PM

ProPublica. Soros funded, left wing, extremist, hate speech propaganda outlet. Its editor is paid $650,000 a year to promote trash. Would you quote an analysis by David Duke? So, do not quote anything from ProPublica.

Here was the situation. Racial disparity was a false, lawyer, bullshit consideration. All sentencing disparity resulted from actual crime victimization disparity. There was no racial disparity in sentencing. Sentences reflected repeat offending, and severities of offenses. Rand checked that out. No racial bias in sentencing, it found. All advocacy to loose black thugs on their neighborhoods devalues black crime victims, for the sake of a few lousy government make work jobs for the lawyers and other registered Democrats.

The country was a criminalized dystopia, thanks to the extreme bias of activist judges in favor of criminals. Murders were in the thousands a year in major cities. The public had enough. It was about to go postal on the judicial system. See the legal analysis by Dirty Harry in his movie series.

In the greatest accomplishment of the legal profession of the 20th Century, the lawyer saved himself, and dropped crime by 40%. Then lawyers lost their jobs, after crime dropped. Led by Hang 'Em High Scalia, the guidelines were dismantled and prohibited in the states. Rent seeking and government jobs will trump all ideology of the lawyer, no matter how extreme. The result? The pro-criminal bias of judges. The result? A 3% decarceration, coinciding with a 15% spike in murders in black neighborhoods.

Where the lawyer and judge live, the death penalty is at the scene. Three police cars arrive in 2 minutes, blasting. No excess force litigation where the lawyer and the judge live. The crime rate, only a couple of miles from Fallujah like neighborhoods, is lower than in Japan or Switzerland.

Meanwhile, criminality remains rampant at the Supreme Court in the form of its insurrection against the constitution. Article I Section 1 gives "all" lawmaking powers to the Congress. Repealing laws, making new laws, breaking the tradition of 10,000 years of civilization. No problem at the Supreme Court. It is a full time, 100% criminal enterprise, with no let up.

Posted by: David Behar | Dec 13, 2017 7:34:17 AM

I have always considered the disparity to be bizarre justification, even had it existed. Federal crimes offer nearly 100% overlap with state crimes and under the federal system, local variation should be encouraged, especially for essentially state crimes tried in federal courts by the happenstance of Interstate commerce.

Posted by: Fat Bastard | Dec 13, 2017 2:12:08 PM

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