Sentencing Empiricism Beyond the Wonkfest
August 9, 2016 (Fault Lines) — After Iowa Senior District Judge Mark Bennett asked the question, Are Federal Judges Addicted to Incarceration?,” there was a non-zero chance that Nebraska Senior District Judge Richard Kopf would respond. Judge Kopf has long been interested in, and has become quite knowledgeable about, the use of empirical tools in sentencing. And with some reason:
It is true, as Mark has said, that he is an empiricist (and, I should add, a humanist). He is also profile writer about empirical questions and data derived from those empirical questions. (For example, he could explain to you in his sleep what an “R2” means!) So, it is with some trepidation that I respond to his post entitled, Are Federal Judges Addicted to Incarceration?
The answer to Mark’s titular question is, undoubtedly, “yes.” There are many reasons for this addiction. Largely, however, that addiction is due to the psychological impact of “anchoring” that occurs when using the Sentencing Guidelines, as the Guidelines call for prison sentences in the great majority of federal criminal cases. Indeed, Mark’s own scholarship on “anchoring” makes that plain. In short, old habits die hard, particularly when a judge has no pre-Guidelines experience.
Essentially, Judge Bennett explained the addiction to incarceration as a byproduct of reliance on the now-not-too-mandatory federal Sentencing Guidelines which, he explains, were largely made up numbers reflecting the politics of crime at the time, and have since been taken as gospel by the judiciary as if they represented the proper length of sentences for magic reasons.
And Judge Kopf, who exerted Herculean efforts to become an empirical umpire, took a different direction, without quite agreeing that the Guidelines were made of whole cloth, that empiricism could serve to take the voodoo out of sentencing.
Rather, I want to be practical and get down to the here and now. That is, I want to specifically address Mark’s reference to my Federal Sentencing Reporter article where I suggested, among other things, that we ought to use an empirically validated risk assessment tool at sentencing similar to the one known as PCRA (Post Conviction Risk Assessment). PCRA is used in most federal courts now, but only when the offender gets out of prison and begins the supervised release stage. I believe PCRA should also be used at sentencing.
Realizing that reliance on the PCRA was likely to rile up defense lawyers, who inherently believe in our own magic abilities to obtain the best possible sentence, he closed with a bone for the angry mutts:
I agree with Mark that many of us are addicted to long prison sentences. But that is changing. I am convinced that the use of PCRA (at least the officer section) at sentencing as exemplified by the District of North Dakota provides us an opportunity to help offenders even when we feel compelled to impose prison sentences. It is a start, and one that founded upon a solid empirical foundation.
If you read between the lines, what you will see is that the PCRA is likely to produce lower sentences of imprisonment. What criminal defense lawyer doesn’t want his client to get a lower sentence? There’s the kicker.
So are we all on board? Well, not exactly. While statistics give me, like most lawyers, hives, that doesn’t mean others aren’t pretty good with them, enough so as to raise questions that can’t be wiped away by claims of empirical validity, like the folks at ProPublica, who called bullshit. And when taken to task by the company profiting off their empiricism for sale, called bullshit again. Who’s right? Beats me. I’m just a lawyer, but I wouldn’t take one-sided validity for granted,
Or maybe the problem isn’t just with the fact that the empirical criteria are thinly veiled proxies for race and poverty, but that they play to the confirmation bias.
We find that while several appropriate features predict sentence length, such as details of the crime committed, other features seemingly unrelated, including daily temperature, baseball game scores, and location of trial, are predictive as well. Unrelated events were, surprisingly, more predictive than race, which did not predict sentencing length relative to the guidelines. This is consistent with recent research on racial disparities in sentencing that highlights the role of prosecutors in making charges that influence the maximum and minimum recommended sentence. Finally, we attribute the predictive importance of date to the 2005 U.S. Supreme Court case, United States v. Booker, after which sentence length more frequently fell near the guideline minimum and the range of minimum and maximum sentences became more extreme.
Doug Berman calls this “seemingly somewhat kooky,” and, indeed, who would even think to study baseball game scores as sentencing predictors? But when you think about it, it makes a lot of sense. A happy judge is a more merciful judge, and a judge whose team won last night is a happy judge.
But for all this very thoughtful, even wonkish, focus on empiricism, there is one player in the game of sentencing that never makes it into the mix.
If part of the justification for sending a human being to be caged for a period of years is to produce a person on the backend who will not emerge to commit crimes, harm people, have no skills or knowledge that will allow the person to assume a place in society where he can live a law-abiding life, then prisons have failed. And if prisons have failed, then why is the focus not on the failure of the institution of prison to fulfill its legal mandate, rather than on the defendant’s unrepaired past?
Why will no one mention that the Bureau of Prisons, the governmental entity whose job it is to take these broken defendants and return them to society prepared to be law-abiding, productive citizens, is a miserable failure at its job? All the empiricism in the world doesn’t excuse the fact that incarceration is a failure when it comes to rehabilitation, and yet judges keep sending people into its clutches with the expectation they’re going to come out better for it.
What about rehabilitation, judges? When will you turn your attention away from the recidivism cues and instead ask why the place you’re sending them remains a miserable failure?