Login | September 24, 2020

Striving toward justice with data

KATHLEEN MALONEY
Supreme Court
Public Information Office

Published: September 17, 2020

Chief Justice Maureen O’Connor said it’s long overdue. In 1999, an Ohio Supreme Court racial fairness commission called for a statewide sentencing database to gather concrete information about the fairness and proportionality of criminal sentences, and a related task force reiterated the request three years later. Dozens of commissions, task forces, and blue-ribbon panels in Ohio and across the country, over 25 years, have done the same.
Today, the public, having witnessed the cruel, senseless death of George Floyd in Minneapolis, is making a visible and vocal nationwide demand for racial justice. The country’s elevated awareness of racial fairness issues presents an opportunity to reemphasize the value and role of data for understanding and evaluating sentencing practices, and in pointing out and combating discriminatory practices where they exist.
“The public must be informed so they can have faith in our justice system,” Chief Justice O’Connor said. “They must be able to see equal justice for all and believe what they see. And they must be able to see injustice when it occurs. The way to demonstrate, and then monitor, equal justice is in facts and figures, in metrics and transparency.”
“Tinkering around the edges of our sentencing structure isn’t moving the needle,” stated Sara Andrews, executive director of the Ohio Criminal Sentencing Commission. “There has to be a wholesale effort to recalibrate sentencing structures and practices.”
Nearly every state has identified the need for comprehensive, data-driven information about sentencing. However, successful implementation has been limited. Yes, there are obstacles, perceived and real, from technological to human. Yet with the public’s heightened attention and hoped-for action, leaders in the Ohio judicial branch think now is the time to move forward.
So, what will it take?
The chief justice, the Ohio Criminal Sentencing Commission, state judges, and the legal community have been drilling into the details in online forums held in July and August. Here are the key steps they’ve identified to move Ohio toward greater fairness and justice.
Approve a Uniform Felony Sentencing Form
Home rule is at the heart of governing in Ohio. It’s a decentralized structure for government, including the judicial branch. While local self-determination has its plusses, one outcome is the separate case management and collection of data by the state’s courts across 88 counties – that’s 88 common pleas courts, 131 municipal courts, and 33 county courts. To discern what is, and isn’t, being gathered for the sentencing of adults for felonies, Sixth District Court of Appeals Judge Gene Zmuda and an ad hoc Court committee collected judgment entries on felony sentences from across the state. The disparities were extreme.
Judge Zmuda said one county that’s getting by with limited resources handwrites its sentencing entries, leaving the Department of Rehabilitation and Correction to decipher the court’s sentences and orders. Other courts with greater means have robust electronic data collection, but their information is siloed within their county or court.
Based on its review, the committee designed a uniform sentencing entry – the engine for a statewide data platform. The proposed sentencing entry will provide uniformity in the recording of sentencing information and will establish specific data points, including biographical and demographic information, Judge Zmuda said. The committee also developed a standardized form to track information from earlier stages in the criminal process about the methods of conviction (a plea bargain or a trial).
This month, the committee presented to Chief Justice O’Connor the proposed sentencing entry, a proposed method-of-conviction entry, and other effective documents and notices from courts. The package will be reviewed by the Supreme Court.
Construct a Centralized Data Platform
In Ohio, there is no comprehensive database to answer basic questions about adults sentenced for felony offenses cannot be answered: What sentence did courts impose for each felony offender? How many people were sentenced to a specific felony offense this year and at what level? What number were placed in diversion programs? How many were placed on court-ordered community control? How many were found not guilty (weren’t sentenced)? How often are plea bargains entered into?
Professor Hazem Said, founder of the University of Cincinnati’s Information Technology Solutions Center, told Court News Ohio that home rule can be preserved while adding a technological layer alongside each court’s information to create a uniform data platform about felony sentencing. He’s not deterred by the project’s complexity. Said led the team that built a statewide risk-assessment tool for the Ohio Department of Youth Services, created to support 88 counties that collected data differently.
The Ohio Criminal Sentencing Commission reached out to universities to enlist their expertise in solving the sentencing data collection problem that has been so daunting for so many decades. The University of Cincinnati School of Information Technology and School of Criminal Justice, Ohio State University Moritz College of Law, and Case Western Reserve University School of Law are anticipated collaborators.
Said described the center’s strategy, which is used for difficult problems without clear answers.
“As you peel the layers of the onion, you learn more about the project and the solution,” he explained. “You start with what you know today.”
Court stakeholders inform the platform design team about what’s needed all along the way, and the team tunnels deeper and deeper through the layers, learning as they go, he said.
Start Small, Build Momentum
While the Supreme Court considers the suggested uniform entries, Andrews expects one court will begin developing the data platform. The pilot court will implement the proposed uniform sentencing entry and method-of-conviction entry, and the court’s sentencing-related workflows will be mapped to build a prototype for the data points and sentencing platform.
This approach, Said noted, will allow a pilot platform to be developed fairly quickly. There are already state courts that have been fully engaged in the process of compiling a proposed uniform sentencing entry. He expects that those courts will participate in the early wave of the platform design. Envision circles expanding from these initial courts to encompass more and more of the judicial branch as enthusiasm and momentum rises for the project, he said.
“The courts that are already collecting robust data could be the stewards and lead us on our way to a statewide system,” Judge Zmuda stated. “We can then raise all boats and say this is the minimal standard.”
Explain How Cost Isn't Prohibitive
“I feel like one of the reasons we haven’t moved further in this conversation is because people throw their hands up and say it’s going to take $100 million and 20 years before you can do anything,” Andrews said. “I just don’t think that’s true.”
She said the academic partners anticipate that the statewide platform can be accomplished for less than courts and others imagine by using existing databases and resources, and formatting the information differently. To her point, the commission and university partners applied for a $59,000 grant to launch the first phase. They’ll find out in October whether they secured the funds.
The cost of imprisonment on the public coffers also will be lessened, Justice Michael Donnelly argued. A statewide data platform will produce sentences that are more fair and more free from bias, and likely will shorten time behind bars, particularly for those who’ve committed nonviolent crimes – an outcome that saves dollars.
“At events around the state, people from the executive and legislative branches talk about the drain on the system because of mass incarceration,” Justice Donnelly said. “Whatever money it costs to implement this system, it will decrease what we pay for mass incarceration of nonviolent offenders in this state.”
In addition, comprehensive statewide data will help align sentencing practices with the purposes and principles the General Assembly mandated courts to follow when sentencing offenders for felonies – to protect the public, to punish the offender, to promote rehabilitation using the minimum sanctions that accomplish those purposes, and to do so without imposing an unnecessary burden on government resources. (See Sidebar.)
“There is a budgetary cost that is being paid when we don’t follow the law,” Eighth District Court of Appeals Judge Ray Headen said. “Judges need this information. How will you know you’re imposing the minimum sanction without data? How will you know whether you’re imposing an unnecessary burden on state and local government resources without data?”
“Here we have the law,” he added. “The law speaks for itself. The General Assembly has spoken.”
Detail the Price of Doing Nothing
After 30 years of what Andrews referred to as “bureaucratic paralysis,” Judge Headen said there will be a toll on society if a sentencing database isn’t implemented going forward.
“Inertia has been the problem,” Judge Headen said. “I believe data is the answer.”
One outcome of a criminal justice system that operates without evidence-based information is the current incarceration of 46,000 offenders in Ohio’s prisons at a cost of $30,500 per year per offender.
“No one is saying that people don’t need to go to jail,” he added. “There are offenders who need to go to jail. There are victims of crime. But the law requires consistent sentences for similar crimes committed by similar offenders.”
Judge Headen said another price paid because of the lack of data is “mass incarceration creep.” That’s when individuals receive sentences longer than they should, which leads to increased prison populations – escalating the number of dollars paid by the public to support incarceration. Then there are other costs to society, he explained. There’s a cost to businesses when they can’t find people to fill job openings. And there’s a cost to communities when Black males, for example, are in prisons instead of with their families, and end up with records longer than is fair, he said.
Information about sentencing practices can be uncovered, but it happens through isolated, individual efforts, rather than in an open, centralized system. Columbus lawyer Diane Menashe told Justice Donnelly about an involuntary manslaughter case she handled. Menashe spoke about the case at a Columbus Metropolitan Club forum. Her client faced a sentence of 13 years, proposed by the prosecutors, based on a law that allows a conviction for involuntary manslaughter when a person gives heroin to someone, who then uses the drug and dies.
Menashe thought the suggested sentence was extreme for her client, who had no criminal record, had several mitigating circumstances, and had given the drugs to a friend. Menashe wondered how sentences overall had been dispensed on this charge. She started digging for data on every involuntary manslaughter charge in Franklin County that was pled out based on the same statute. She discovered – after 39.4 hours – that the average sentence for defendants in the same circumstances was four years. She presented the information to the judge, who was persuaded by the data, and sentenced the defendant to just under five years.
Menashe, who works as the pro bono director at a large firm, asked, though, “Who has 39 hours to give to a case?”
Justice Donnelly pointed to the example to illustrate that judges would find data incredibly useful.
“Judges, when shown the information, want to be fair,” he said.
Ensure Judges Retain Flexibility in Sentencing
A statewide data platform won’t dampen or destroy judicial discretion, the advocates emphasize.
“As a former trial court judge, any time the legislature passed a law that took away judicial discretion, I was always against it,” Justice Donnelly noted. “As trial court judges, that’s what we use to distinguish one case from another if it needs to be distinguished. … Treat likes alike and, if a judge is going to treat someone differently, there better be a good reason for it.
“With the state system, we would be providing judges the tool for making meaningful comparisons in decisions, and diminish that impression that [a person’s] sentence depends on which judge you’re going to get,” he stated.
Judge Headen concurred. Those pushing for a sentencing platform don’t want to take away a judge’s ability to sentence as he or she determines is appropriate, he stressed.
“That is absolutely the law of the land, and it will not change by having data,” he said. “But what we fundamentally believe is that having data will allow for judges to have a mechanism to do what the law requires.”
Make Clear How Data Can Dispel Bias
Judge Headen noted mistakes and misjudgments occur when judges sentence without information.
“[A data platform] isn’t preventing people from getting the punishment they deserve, but making sure the punishment is meted out fairly,” he said. “And, it’s a great way of responding to people who say a judge is ‘soft on crime.’”
“Someone once said that discretion is the fertile ground for implicit bias,” Justice Donnelly noted. “If you look at the Florida investigation [‘Bias on the Bench’ by the Sarasota Herald-Tribune], the judges who were sentencing people of color with more severe sentences than white defendants didn’t have reputations for being racist. In fact, they had just the opposite. They had reputations for being fair. But we are human beings as judges, and everyone has bias.”
Yet those biases could be countered with concrete numbers from each jurisdiction.
“That’s the power of data,” Menashe said. “We can’t get to addressing racial justice until we peel back the layers, and have more transparency with how race is really impacting our judicial system.”
Persuade Prosecutors to Back Effort
Prosecutors generally have been reluctant to support a statewide criminal sentencing database. But it has value for them as well, Justice Donnelly said.
“I can’t overemphasize that this data is going to be important to every stakeholder,” he stated. “Especially the prosecutors, who are the most powerful in the criminal justice system. They have to be at the table in order to make this change.”
When prosecutors are accused of overcharging for crimes, they should have a device to analyze what pleas they’re offering, to whom, and why, he said. This data will prove or disprove such allegations. Prosecutors can determine whether they are consistent in the way they charge offenders, and that they aren’t offering pleas that result in racial disparity in sentences, Justice Donnelly stated. If their processes are problematic, he added, then they can adjust for the better.
Garner Support of Broader Legal Community
Rallying lawyers throughout the state to support a statewide data platform is essential. An important focus will be local bar associations.
“We have sat on inertia for 30 years,” Judge Headen remarked, referring to the longtime inaction, particularly since the General Assembly asked the Court in 1996 to collect sentencing data. “We need to make sure there is a grassroots level of support to make sure this doesn’t happen again.”
Convincing more judges of the initiative’s merits, both for their individual court and for society, will be key, too.
“I find it ironic that judges … are reluctant to receiving as much information as possible,” Judge Zmuda said. “If you’re a judge with a bench trial, you want to know all the information because you want to make your decision as informed as possible.”
The collection of data can be mandated through the Rules of Superintendence for the Courts of Ohio.
“While trial courts don’t answer to the Ohio Supreme Court, it is charged with the task of creating rules of operation for the courts,” explained Judge Zmuda. “The Supreme Court can raise the requirements of what each court is required to collect and maintain. And then work with the legislature to obtain the funds to allow the courts to do that.”
Ohio State University Sociology Professor Ryan King noted that compliance will be critical. He pointed to the failed effort to gather hate crimes data from federal courts.
“The federal government’s attempt to collect hate crime data, which was voluntary, is an absolute mess, to the point where the data tell us almost nothing,” King said.
He acknowledged that compliance is a real challenge, but stated that the data will be useful only if courts are required to submit it.
Alert General Assembly to Advantages of Data for Legislation
A statewide platform for sentencing data will benefit and inform the work of state lawmakers, Justice Donnelly maintained.
“It will provide the legislature information to make policy decisions,” he said.
He foresees that lawmakers will find that the data helps them answer important questions about their work: Are the laws deterring crime? Are the policies achieving their goals?
“Policymakers need this information to provide good laws and to make sure the laws on the books are effective,” he said.
Capture the Public's Attention
Andrews said the lack of success to this point in making a statewide sentencing platform a reality is partly because the conversations about it have remained localized. It’s essential to increase the public’s understanding of what data the judicial branch have and don’t have, and what questions can’t be answered with today’s disparate, complex web of separate systems.
Judge Zmuda noted that trial judges don’t have as much information as people think they have when sentencing a defendant in front of them. There is a need to educate the public, and to encourage them to leverage their power to push for statewide criminal sentencing data to ensure that justice is fairly dispensed in Ohio.
“It’s up to the constituents of our elected officials – from the 99 state representatives and the 33 state senators to all the state’s judges, who are elected,” he said. “Political pressure [for this effort] comes to bear on who you elect. Exercise your right to vote.”


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