The Wisdom We Have Lost: Sentencing Information and its Uses

Abstract

Both federal and state experience in sentencing over the last three decades suggest that sentencing data and knowledge most often lead to wisdom when they are collected with particular uses and users in mind. Ironically, greater reliance on data and expertise can democratize the making and testing of sentencing policy. When data are collected and published with many different users in mind, a variety of participants in the sentencing process can join the Commission as creators of sentencing wisdom, including Congress, state legislatures, state sentencing commissions, sentencing judges, and scholars.

Under the Sentencing Reform Act of 1984, Congress envisioned federal sentencing with a technocratic cast. The SRA directed the U.S. Sentencing Commission to serve as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices. The statute pointed towards the Sentencing Commission itself as the primary user of the data, while the external uses of the data stored in the clearinghouse remain unspecified. Congress can improve the federal sentencing system by directing the U.S. Sentencing Commission to collect information for a broader range of specified users and uses.

Federal experience under the guidelines also shows that rulemaking and research may have become incompatible tasks. Congress should separate these functions and transfer the responsibilities for national data collection, dissemination, and research to a separate National Sentencing Institute, ideally to be located in the judicial branch.

An expanding range of uses for sentencing data also has implications for the sources of those data and analyses. Over the past thirty-five years dozens of structured sentencing experiments have emerged at the state level throughout the United States. Yet these experiments have been isolated from each other, and from the federal system, so that lessons drawn from the state experience have spread too slowly. There is a critical federal role to play in creating national knowledge: encouraging and funding the collection of comparable data from state actors.

Keywords: Sentencing, Criminal Procedure, Criminal Justice, Federalism

JEL Classification: K41, K42