New Data and New Questions: TRAC’s Contribution to Federal Sentencing

Abstract

Even in an era of advisory federal guidelines, it is still easy to focus on the technical minutiae of the Guidelines. The minutiae still matter because the Supreme Court has told us the Guidelines must still be considered and calculated accurately. But the Sentencing Reform Act and its overarching—although often conflicting and widely debated—goals for sentencing demand more. We must continue to resist allowing the Guidelines’ trees to obscure the sentencing forest. Data can help us evaluate sentencing systems and guide sentencing decision-making. Generally speaking, more data is better; though, as we have previously written in these pages, ‘‘Information is a tool and not a panacea.’’ To what use will and should we put sentencing information? Our current federal sentencing structure developed partially out of a concern about unwarranted disparity, but it can be challenging to understand exactly how that concern should inform data collection, what the extant sentencing data truly reveal about unwarranted disparities, and what else should be considered in any analysis of sentencing decisions. This isue of FSR implicates all these matters as we take stock of an important new data set concerning federal sentencing outcomes in recent years. In March 2012, the Transactional Records Access Clearinghouse (TRAC) released an analysis of more than 370,000 criminal cases sentenced in the federal courts during a five-year period. TRAC described its work as a ‘‘first-of-its-kind, judge-by-judge review of federal sentences imposed for drugs, white collar and other kinds of crimes,’’ and highlights from TRAC’s analysis were posted on its website under the heading ‘‘Surprising Judge-to-Judge Variations Documented in Federal Sentencing.’’ The press coverage of TRAC’s data spotlighted concerns about sentencing disparity; the Federal Public Defenders, in turn, were quick to issue a ‘‘Fact Sheet’’ spotlighting limitations and problems with TRAC’s raw data and initial analysis. Recognizing the import and potential impact of TRAC’s data, the Editors of FSR committed this issue primarily to the TRAC data and materials exploring the data’s meaning and import. The result is an issue brimming with updated data and expanded analyses from TRAC and the Defenders. In fact, this issue of FSR not only provides a guided tour of and a healthy debate between TRAC and the Defenders concerning the TRAC data, but also includes additional original commentary from others involved in the federal sentencing system concerning the TRAC data and its broader implications. These Editors’ Observations briefly highlight some of what the TRAC data do and do not add to our basic understanding of federal sentencing policies and practices in the post-Booker era. These Observations also suggest that, though new types of federal sentencing data should always be welcomed and assessed, it may now be time to ask (again) broader questions about the fundamental goals of the federal criminal justice system and Guideline sentencing practices.