Abstract
This inquiry explores how data analyses about US Federal sentences have transformed sentencing practice beginning in the mid-1980s. I consider this inquiry an early case of the datafication of law, a pervasive process that translates legal practice into data and embeds it in digital networks so it can be tracked and analyzed in real time. To explore datafication historically and in relation to legal practice and power, I consider it not as an objective and passive undertaking but, rather, as an ideological and performative process that encodes and enacts normative presumptions and desirable futures. The empirical inquiry traverses “levels of analysis” and thus bridges prominent perspectives in sociolegal research. In so doing, I identify four mechanisms that mediate “large-scale” processes and “local” practices: field assembly, symbolic projection, material inscription, and boundaries spanning. Substantively, I show how datafication has not simply described, but also transformed, sentencing practice according to a colorblind-carceral imaginary that strives to fix the present in place. By relentlessly translating decisions into data forms that derive from this carceral imaginary, datafication affects judicial action and partakes in sustaining legacies of oppression. Yet, like other technologies, datafication also reveals dialectic dimensions in opening up to new actors and subjecting its ideological underpinnings to contestation and change.
Highlights
The commission reported that, of the 2,258 cases in a random sample, 82.3 percent of sentences were “compliant” in that they fell within the applicable range, 2.9 percent were above the range, 5.7 percent were below the range because the defendants assisted the government, and 9.1 percent were below the range for other reasons (Tonry 1989)
The broader significance of this mundane adjustment comes to view when considered alongside still other new requirements. Another provision required the chief judge of each district “to ensure that, within 30 days : : : the sentencing court submits to the Commission a written report of the sentence” and of various sentencing documents, including “the statement of reasons for the sentence imposed.”11 The Feeney Amendment further ensured that the commission “shall make available to the Attorney General, upon request, such data files as the Commission may assemble : : : including the identity of the sentencing judge.”12 Still other provisions instructed the commission to provide the amassed data to either Congress or the Department of Justice, establishing digital data collection conduits that linked every decision, as it was being written, to numerous actors in an expanding network
A judge reaches a sentencing decision, already encoded in a data form prescribed by the commission through the statement of reasons (SOR) form; the decision is uploaded onto established data trails and travels to the commission; the commission compiles the data and makes them available, if modified, to the Attorney General, Congress, and researchers; the commission and increasingly other actors analyze the data and circulate their findings within and without the very field they describe; when needed, the commission issues modifications in the SOR form and/or amends the data-collection network on which its work depends; gradually, numerous other actors rely upon these data to monitor and analyze sentencing practice
Summary
While established accounts employ relatively reified distinctions between “levels of analysis” (for example, macro/meso/micro) and focus primarily on one or the other (Rubin 2019), a performative approach asks how datafication mediates action in between sites This approach helps explain judges’ continued reliance on the Guidelines post-Booker by reference to the stickiness of “local” organizational norms (Ulmer and Johnson 2017) and by illuminating external pressures that continued to affect judicial practices, via datafication, long after the Guidelines’ formal relegation. The analysis shows how the datafication of sentencing derived from a “sociotechnical imaginary” that is effectively carceral in that it strives to fix an oppressive present in place This imaginary informed foundational, yet technical, decisions, such as what variables to include in the data form and how to specify them, which encoded legacies of discrimination into colorblind schemes. A performative conception of the nexus between social science, law, and persistent inequities encourages us to orient datafication to neutrality and objectivity and toward accountability and justice
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