How a Spreadsheet Could Change the Criminal-Justice System

A lack of data instills trial-court judges with enormous, largely unrestrained sentencing power.

Judges have various restrictions on what they can say publicly, and for that reason, you don’t often hear our voices in contemporary public-policy debates. But as momentum builds to address deep inequities in our criminal-justice system, we feel it’s important to highlight a problem lurking in the background that could jeopardize these efforts: Many court systems lack basic data about themselves, including about their criminal-sentencing decisions. This means that when a judge considers a sentence for a criminal defendant, he or she has no way to evaluate it against others handed down for similar crimes in the same state, or even the same county.

Most people agree, in theory, that a court should treat similarly situated defendants equivalently in terms of their sentences. But this is not happening in practice. Criminal sentences for both violent and nonviolent cases vary widely from court to court and from defendant to defendant. The failure to gather and analyze sentencing information leaves our system vulnerable to the vagaries of explicit and implicit bias and instills our trial-court judges with enormous, largely unrestrained sentencing power.

Courts need to understand the scope and specifics of the problem that they are trying to solve.  Otherwise, they may adopt half-measures that make people feel good in the moment, but really leave broader issues and systemic inequities untouched.

A lack of data collection and analysis is a nationwide problem. Many states, including Ohio, where we serve, do not have reliable statewide numbers on the criminal sentences they impose. The states that do compile statistics have significant gaps. The problem extends beyond sentencing—many states also can’t measure, for instance, what the average bail rate is for various offenses, or even the effectiveness of the bail system.

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All of this may strike one as inconceivable: How does a court system lack basic statistics in this technological day and age? The answer varies by state, but typically, antiquated IT infrastructure in state courts, no uniform requirements on compiling numbers, and a lack of coordination across jurisdictions precludes gathering meaningful numbers and demographics. And, in many corners, institutional interests are aligned to resist transparency out of a fear of what might show up.

None of these reasons should surprise anyone in the judiciary. Nearly 20 years ago, a blue-ribbon panel commissioned by Ohio’s Supreme Court concluded that the state should compile sentencing and other related data. The state legislature, desiring sentences to be consistent, fair, and not racially disparate, likewise urged similar collection. Despite the recognized need for a sentencing database, the political will to make it happen never materialized, and we, as a state, missed a golden opportunity.

For states that are starting to gather statistics, they are finding troubling, but not surprising, results. The Massachusetts Supreme Judicial Court commissioned an analysis of statewide numbers to evaluate racial disparities. Plagued by many data challenges, this effort took several years. The recently published report showed what many of us know: People of color are vastly overrepresented in the criminal-justice system as defendants; they receive longer sentences than white defendants; and they are typically charged with more serious offenses to begin with (a leverage tool to force plea agreements). When judges see reports that show this is happening in their own courts, they must ask themselves hard questions about their own complicity in these results.

In 2016, investigative reporters with the Sarasota Herald-Tribune conducted a comparison study that confirmed racial disparities in Florida’s criminal-justice system. One of the examples from their study examined two cases involving armed robbery. The same judge sentenced a white defendant to two years, but a Black defendant to 26 years—for essentially the same offense. These two individuals were almost the same age, both had a single prior misdemeanor, and they were rated the same based on Florida’s sentencing guidelines. When judges have virtually unchecked discretion, and they lack ready access to sentencing data, these discrepancies are bound to continue happening.