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Data cited in SCOTUS decision upholding Sentencing Commission was 'flimsy' and 'flat-out wrong'

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Data cited by the U.S. Supreme Court in 1989 when it upheld the constitutionality of the U.S. Sentencing Commission was “flimsy and even flat-out wrong,” according to an investigation by ProPublica.



The decision in Mistretta v. United States said the Sentencing Commission was needed to eliminate widespread sentencing disparities among federal judges.

The court cited a congressional report, which in turn cited two studies, according to ProPublica.

One study was a survey that asked federal judges what sentence they would give in hypothetical cases. But the study ignored that most sentences were plea bargains, and there was no evidence offered that judges were approving vastly different plea bargain terms.

The other study compared average sentences in federal courts for identical crimes. But that study “was riddled with sample size errors that should have rendered much of the data unusable,” according to ProPublica.

The study found the average prison term for larceny in federal courts across the country was three years and four months. In Maine, however, the average was 12 years and based on a single case.

The study also said Kentucky’s eastern district court imposed an average burglary sentence of nearly 14 years in prison, which “appears remarkably punitive,” according to the article. But there was apparently an error in the data.

There were only four prison sentences for burglary in Kentucky’s eastern district in the year studied, and three of the sentences averaged three years and four months. The fourth sentence, in a juvenile case, was said to be more than 45 years in prison. The maximum sentence for burglary was 15 years.

There were problems with small sample sizes in other districts, as well. Also, the data did not address the question of the defendants’ criminal histories.

Studies done over 30 years “only made clearer that the central rationale for the commission’s creation—large and pervasive discrepancies in sentencing imposed by judges—never existed,” according to ProPublica.

“Before the guidelines took effect, the average difference between judges was roughly five to eight months—not years, as the congressional report claimed and the nation’s highest court believed,” the article reports. “After the guidelines were instituted, additional analysis has shown, the difference between sentences shrank by roughly a month.”

The guidelines are now advisory as a result of a January 2005 U.S. Supreme Court decision that found a violation of the right to a jury trial.

Writing on his blog Sentencing Law and Policy, Ohio State University law professor Douglas Berman stresses that Mistretta focused on constitutional issues, rather than empirical questions. And the studies examined by ProPublica “were really only the tip of the evidentiary iceberg”; sentencing disparities were documented as long ago as the 1950s, Berman says.

“The notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny,” he writes.