This problem manifested itself in the case of Susan Gwynne, a 55-year-old Ohio woman with no felony criminal history who faced multiple nonviolent-property-theft charges for stealing nursing-home residents’ personal property. After entering a negotiated plea agreement in which a number of her charges were dismissed, Gwynne arrived at her sentencing hearing not knowing whether she would receive probation (and thus no prison time) or a lengthy prison sentence, because either of these scenarios fell within the range of possible penalties authorized by law.
The judge, imbued with nearly unfettered discretion, sentenced her to serve 65 years in a state prison, effectively ensuring that she will die in prison for committing a series of nonviolent thefts. She received a longer sentence than many rapists and murderers, who may also have the opportunity to be released from prison in 10 or 15 years (at the low end). If Gwynne’s attorney had the relevant information, he could have demonstrated on the record that her sentence was astronomically out of proportion to similar theft-related cases, and such a record would enable appellate courts to conduct meaningful scrutiny of the sentence.
Examples like these, unfortunately, can be found in every state. And they foster an already boiling mistrust of the judicial system, particularly among people of color who intuitively know that they receive more severe sentences than similarly situated white defendants.
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Although data challenges are pervasive and a key barrier to criminal-justice reform, they can be solved. In response to the statewide analysis conducted by the Sarasota Herald-Tribune, Florida legislators passed groundbreaking legislation to standardize the way the state gathers and shares information. The state has already missed some deadlines, but the legislation as designed would render Florida one of the most transparent states in the country from a criminal-data perspective.
Other states are also starting to create comprehensive databases so that informed criminal sentences are accessible to all stakeholders—judges, prosecuting and defense attorneys, defendants, and policy makers. Currently, the nonprofit Measures for Justice has compiled statistics for 16 states. Ohio, led by Chief Justice Maureen O’Connor, is in the process of developing a felony-sentencing database with the objective of making information accessible, shareable, and reportable. It can’t come soon enough. Indeed, if every state acted quickly, we could solve this issue in short order, and then move on to implement lasting criminal-justice reform that would end mass incarceration.
The goal of these efforts is not to eliminate judicial discretion (judges aren’t robots, after all) but to provide sound analysis to inform judges in the exercise of that discretion. If everyone has complete access to information, the prosecutor can make an informed sentencing recommendation, the defense counsel can use the data to make his or her case, and the judge can feel secure in knowing that the sentence imposed fits well within the range from other courts around the state. If the sentence deviates up or down, the judge can give a reason on the record, providing greater transparency in the process. Objective measures that are comparable, consistent, and reliable can better ensure the equalized application of justice.