2 Judges On How Better Sentencing Data Could Make Meaningful Criminal Justice Reform NPR's Mary Louise Kelly talks with Judge Pierre Bergeron and Justice Michael Donnelly on the lack of sentencing data available to judges, leaving them with power to make often inequitable decisions.

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2 Judges On How Better Sentencing Data Could Make Meaningful Criminal Justice Reform

2 Judges On How Better Sentencing Data Could Make Meaningful Criminal Justice Reform

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NPR's Mary Louise Kelly talks with Judge Pierre Bergeron and Justice Michael Donnelly on the lack of sentencing data available to judges, leaving them with power to make often inequitable decisions.

MARY LOUISE KELLY, HOST:

How long must someone who's committed a crime spend in prison? What's a reasonable sentence to hand down? What's fair? Those are calls that judges across the country make each and every day, and they do so without the benefit of what would seem to be a basic, obvious tool. In many states, courts lack a comprehensive database on criminal sentences, meaning that judges are often left to their own devices to figure it out. Ohio Court of Appeals Judge Pierre Bergeron and Ohio Supreme Court Justice Michael Donnelly argue in The Atlantic magazine that better sentencing data could make meaningful reform to the criminal justice system. They join me now. Welcome to ALL THINGS CONSIDERED.

MICHAEL DONNELLY: Thank you.

PIERRE BERGERON: Thank you.

DONNELLY: It's great to be here.

KELLY: Judge Donnelly, I'm going to start with you. And let us - lay out just how does it work in practice. If you are not using data about other sentences because you don't have that data, how do you determine punishment for somebody convicted of a crime?

DONNELLY: Well, before I joined the court in 2018, I served in Cuyahoga County Common Pleas Court for 14 years. And as a trial court judge, one of the most important things I did every single day was make decisions on whether to incarcerate people. And the law in this state directs all trial court judges to treat similarly situated defendants with similar sentences.

KELLY: Which makes total sense but is difficult if you don't know what the sentences are.

DONNELLY: Exactly. In 14 years, I never had a sentencing memorandum brought before me that said, judge, this is the average sentence for similar defendants. I was never shown my own sentencing habits on previously similar cases. So it's kind of like using your gut, for lack of a better description.

KELLY: And what kind of things do you look at to guide your gut?

DONNELLY: Well, we have laws here that dictate that we look at the facts of the case, the defendant's background. And we are supposed to formulate, under our cornerstones of our sentencing laws, sentences that will adequately punish the defendant, set the defendant on a course towards rehabilitation - if that's possible - and protect the community. And we are supposed to use the least amount of resources necessary to do that.

So these objective criteria are supposed to keep sentences down and fair. But unfortunately, without the data, we can't make better-informed decisions than we did. And as a result, sentences are all over the board. And unfortunately, practitioners here in our state tend to believe that the outcome of the criminal justice case is more dependent on which judge you're going to be assigned to than the rule of law that are supposed to be equally applied to defendants across the board.

KELLY: Judge Bergeron, let me bring you in. You are an appellate judge, which means you review sentences that other judges have imposed. What is your takeaway for - about what the problem is and what needs to be changed here?

BERGERON: I think it's multifactored. And I think part of the issue is when we get decisions on appeal, there's no baseline. And I've recalled several instances where I've received a decision and I say, that sentence seems incredibly high to me. But then to tie in to what Justice Donnelly said, that's just my gut instinct. I don't have data to back that up. And part of what we're advocating for is to have that data so that we can all take a look at the criminal justice system and figure out what makes sense in terms of meaningful reform. And I think everyone would agree that we want to sentence criminal defendants in a consistent manner, but we can't really do that unless we have the data available to everyone.

KELLY: People may be wondering, hang on; there are sentencing guidelines. There are maximum and minimum penalties for crimes, which judges can't just throw out the window and completely ignore. Is part of the problem that the range is just so wide that it leaves too much to discretion?

BERGERON: In some cases, that's absolutely the case. But in Ohio, there's also the ability to impose consecutive sentences. And I imagine that's similar in most states. And so that adds a whole nother layer of discretion to the trial judge because if you have two sentences for the crimes that you committed and one is eight years and one is 10 years, if the judge says, well, I'm going to run those consecutively, that means you suddenly have 18 years rather than 10 or eight. So I think that's the other variable that allows for really wide disparities in the sentences.

KELLY: Stay with disparities. Your article also points to the implications of this in terms of racial disparities in sentencing. Explain, Justice Donnelly.

DONNELLY: Well, one of the things that initially got me interested was an article that was written by some investigative reporters in Florida in 2016. And what they did was conduct a study - a comparison study over a number of years of similarly situated defendants charged with the same crimes with similar backgrounds. And what the data revealed was very disturbing. People of color were receiving exponentially more severe sentences than white defendants. There's one case where the same judge sentenced on a robbery charge where the Black defendant received a 26-year sentence. A white defendant with the exact same background received two years' jail time. So that's the type of disparity this data reveals, which should concern us all.

KELLY: OK, well, I'm persuaded. This seems like a great idea. Why doesn't it exist? What are the obstacles to creating a transparent, easily searchable database?

BERGERON: This is not a new problem. It's not something that we weren't aware of. But I think there's a multitude of reasons why it hasn't happened. If you look at most states, they aren't centralized in terms of their criminal justice system, so a lot of it is county by county. Those counties don't often interrelate. And so when you talk about, like, these states, a lot of them have aging IT infrastructure. There are kind of barriers just in collecting the data. And then if you - if one county collects it, they might collect it in a different way than another county. So even if you had the data, it might not all be apples to apples that would allow you to do a comparison.

KELLY: Is there also, Justice Donnelly, some institutional resistance, perhaps? If you have a transparent, searchable database, people may worry what exactly might show up in it.

DONNELLY: Oh, I think that's absolutely the case. And as we've gone around the state advocating for this, we have absolutely heard that type of resistance from judges on the trial bench. We have an elected judiciary here in the state of Ohio, and I think there's a fear that if the data reveals similar to what took place in Florida that that could be used negatively. And we're trying to counter that by looking at this prospectively.

We want to develop a uniform sentencing entry so that we can collect data points uniformly throughout the state of Ohio and provide all trial court judges with the ability to conduct more informed decision-making than they are right now. I really believe, for every stakeholder, prosecutors, defense lawyers should have this information as they do in the federal system. I really believe it will advance the system light-years from where we are right now in terms of the ability to be fair and provide more equitable sentencing.

KELLY: Ohio Supreme Court Justice Michael Donnelly and Ohio Court of Appeals Judge Pierre Bergeron, thank you to both.

DONNELLY: Thank you.

BERGERON: Our pleasure.

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