Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

Prior related posts:

• A notable judicial pitch for better sentencing data in the Buckeye State"
• "Making a great case for greater data to improve sentencing decision-making and sentencing systems" 
• Updating the Buckeye State's progress creating a needed felony sentencing database 

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.