The Search for Justice: Our Capability, Our Knowledge, and Jurisdictional Injustice—Richard P. Kern Memorial Award Honoree Keynote Speech, August 7, 2024

I knew Rick Kern and am very honored to have my name and my career associated with his tremendous accomplishments. As many have noted in previous addresses to this conference, Rick’s leadership, knowledge, and personality enshrine this award with a great aura. I thank the board of directors for thinking of me as worthy of this award.In this brief presentation, I want to provide some historical perspective to the creation of sentencing commissions and their guidelines that I think are still pertinent. And I do hope, for the sake of justice, that this century will see a revitalization of sentencing commissions across the country. I am proud to have worked with two commissions and to have observed the many accomplishments by all the commissions you represent. Consequently, I think we are a more just system today than when I first entered the system many years ago. I attribute our progress to a fairer system of justice to the hard work that people like Rick Kern, you, and your predecessors brought to fulfillment of sentencing commissions and their goals.I want to step back in time for a moment, a time before sentencing commissions were envisioned by individuals such as Judge Marvin Frankel and others, and note some personal background experiences that stimulated my interest and desire to work toward a fairer system of justice.1I grew up in the 1950s and 1960s and personally saw how segregated and disparate opportunities were in our society toward minorities. In fact, my father managed a J. J. Newberry’s dime store in Columbia, Missouri, that had sit-ins in the 1950s at his segregated lunch counter. In 1967 I worked at the Ohio Penitentiary, where work assignments were segregated and the institution was vastly disproportionately Black. The Ohio Penitentiary was a dysfunctional organization that riots rocked twice in 1968. In 1969 I had the opportunity to replace a juvenile parole officer (family counselor) for a year in Cedar Rapids, Iowa. These experiences sensitized me to the unwarranted disparity in both society and its erosion of justice in the criminal justice system. So, I was unable to resist becoming the Executive Director of the Pennsylvania Commission on Sentencing in 1979 as it was organizing the resources to fulfill its mandate to develop and implement sentencing guidelines.There are many critical challenges that commissions face in their goal to write and effectively implement sentencing guidelines. My observations will focus on the limits of the human brain, the significant advancements to the social sciences commissions have made, and a disparity challenge that I think needs to be considered. The first issue is the limited capacity of the human brain to fully consider the potentially relevant information in making decisions, particularly decisions as complex as sentencing decisions. In other words, the human brain has serious constraints in attempting to make fully rational decisions, and sentencing guidelines can help expand that capability. The second issue I want to highlight is the importance of data that sentencing commissions have brought to the field and how it has played an important role in our understanding of sentencing decisions. The third issue is the disparity inherent in our dual system of justice and the potential sentencing disparity between whether a defendant is processed in the state or federal criminal justice system. With the tremendous expansion of federal jurisdiction over the last several decades, this is a growing source of unwarranted sentencing disparity (see, e.g., American Bar Association Task Force on Federalization of Criminal Law 1998).Assume there are no sentencing guidelines and the judge has a pre-sentence report available as she considers her sentencing choices as to incarceration and, if so, where and for how long. We have all read pre-sentence reports, but have you ever stopped and counted the many pieces of information included in these reports? The amount and details of information provided in pre-sentence reports, I will argue, exceeds the capacity of the human brain. In addition, if there has been a trial or interactions at sentencing, the judge will have seen the defendant and picked up additional cues as to the defendant’s character. Judges might use defendant s’ demeanor, dress, and attitude that may play a role in their decision as to the purpose of the sentence and the best sentence to fulfill that purpose. To weigh the many pieces of information in trying to determine a fair and effective sentence exceeds the capability of the human brain.Research tells us that decision makers can consider and balance only four to seven pieces of information at a time.2 Herbert Simon’s research on decision making explained that, while we assume judges and other decision makers have unlimited capacity to consider the full range of factors important at sentencing, the reality is that our capacity is extremely limited. He called this bounded rationality. Specifically, Simon and his colleagues argued that the human brain has a very limited capacity to make fully rational decisions and “must use approximate methods to handle most tasks. Their rationality is bounded.”3 The notion of bounded rationality has generally escaped the attention of criminologists and criminal justice decision makers.4 Bounded rationality means that decision makers, including police, prosecutors, probation officers, and judges, have a bounded capacity to consider the full range of factors available to them, and thus they must “simplify” decision making by narrowing the number and complexity of the variables being considered in decision making. Thus, decision makers must simplify the decision process, and in doing so they attribute characteristics based on their life circumstances and organizational priorities to certain types of defendants. These attributions may center on whether the judge is more concerned with protection of the public or potential for rehabilitation, but the human brain needs to simplify. We have all heard labels attached to certain judges, such as “hanging judge” or defendant-oriented judge, and in some courts, defense and prosecution try to get their case before a particular judge depending on the judge’s reputation. This model of decision making was one of the critical bases for the argument that, in simplifying sentencing, judges would attribute greater risk and culpability based on age, race, and gender.5The legislature suffers from similar limitations as they create mandatory minimums. Borrowing from Herbert Simon’s notion of bounded rationality, I attach the label unbounded irrationality to legislative decision making in the passing of mandatory minimums. For example, consider the federal “crack-cocaine” legislation passed in the mid-1980s. This legislation is so well known that it needs no review here. Congress enacted the five- and ten-year mandatory minimums without knowledge as to the chemical configuration of crack versus powder or their effects on offenders. The result was an irrational set of statutes. This then set the table for incorporation of this irrationality into the 1987 federal guidelines. The U.S. Sentencing Commission has worked hard since the mid-1990s to ameliorate the unwarranted disparity. I believe that if the “crack” panic had occurred after the formation of the USSC and it had been a party to the process of considering the crack mandatory sentences, the legislation would have been very different and prevented many years of blatantly unfair sentences in the federal courts.Prior to the creation of sentencing commissions in the late 1970s relatively limited data was available to study the potential for unwarranted disparity in sentencing. For example, when John Hagan reviewed the sentencing literature looking for racial disparity in sentencing, there were only ten noncapital murder studies that he could find, and only three allowed for examination of race and sentencing dispositions.6 Fundamentally, we had very little understanding as to the extent to which racial disparity influenced sentencing decisions as we entered the 1970s. The sentencing commission movement was thus built on a very uninformed research foundation. A key reason for the lack of research was the difficulty in compiling data on characteristics of defendants and judges and the decisions made processing defendants from arrest to sentencing.Today, largely because of sentencing commissions systems to monitor the impact of its guidelines in many jurisdictions, we are much more informed regarding sentencing decisions. While there are serious limitations on our understanding, data established by sentencing commissions has provided academic researchers with more detailed measures of the offense, defendants’ prior record, defendants’ demographic characteristics, and many other variables related to the processing of the case. Consequently, we know much more about sentencing decisions than we did prior to the creation of sentencing commissions. For example, monitoring data created by the Pennsylvania Commission on Sentencing has resulted in many refereed journal articles (twenty-six by my count a couple of years ago) and the very deep dataset provided publicly by the U.S. Sentencing Commission has provided the data for a tremendous number of journal articles. In addition, commissions have provided their own reports and those produced by the USSC have contributed immensely to our knowledge of federal sentencing decisions.The data provided by commissions has also served the legislative process. For example, consider the legislatively created “three-strikes” legislation passed in many states. These laws simplified and categorized offenders without reasonable consideration of research as to their effectiveness or impact. After Washington and California started the three-strikes movement in the mid-1990s, similar legislation was proposed in Pennsylvania. My involvement in Pennsylvania’s three-strikes legislation came about when the District Attorneys’ Association lobbyists called the Pennsylvania Commission on Sentencing saying: “John, there is a ‘three-strikes’ bill being introduced that will be law in 6 months. You need to do something about it.” The DA Association did not want to publicly come out against the bill, but they thought it would be too draconian and overcrowd the prisons, ultimately bringing the correctional system under court order to release inmates. The Pennsylvania commission had an informed and credible voice in Pennsylvania, and pursuant to the request from the person that called, we joined with other agencies and used our commission data to project impacts of the proposed legislation and drew on research to bring to the legislature important considerations that slowed and narrowed the legislation. We estimated that if the law was passed and fully implemented there would be an additional sixteen thousand inmates in our state prisons. Further, we drew on the work of one of our commissioners, Professor Alfred Blumstein, that criminal careers were not lifetime in length.7 The three-strikes bill proposed would have targeted for life without parole offenders sentenced at age 30.5 years, who would on average have spent an estimated 47 years in prison before their death. The point the commission was making for the legislature to consider was that the proposed legislation would be incarcerating these offenders far beyond their criminal careers and imposing health care burdens on the correctional system with no benefit to the public. The legislation was amended to narrow the focus of the legislation and eliminate the life-without-parole sentence.While serious limitations remain on our understanding of sentencing decisions, the monitoring data established by sentencing commissions has provided academic researchers with more detailed measures of the offense, defendants’ prior record, defendants’ demographic characteristics, and many other variables related to sentencing decisions. Consequently, we know much more about sentencing decisions than we did prior to the creation of sentencing commissions, and it has pushed back the need for more comprehensive and deeper information on earlier decisions in offender processing.And finally, I want to highlight the importance of organizations and the interorganizational networks that influence the operations of agencies. Having worked with both the Pennsylvania Commission on Sentencing and the U.S. Sentencing Commission gave me great opportunities to work with two very different commissions at two different stages of their efforts and in very different political environments. Coming out of my limited experiences, working in the correctional and parole system cultivated my interests in organizations and the network of criminal justice organizations that, while “adversarial” in theory, had working relationships that cultivated a normative culture that gave greater certainty and predictability to the working lives of participants.For sentencing guidelines there are two ingredients that I want to note in this presentation. First, sentencing guidelines target judges’ decisions, but the reality is that prosecutors, defense attorneys, probation officers, police, and their organizations have important input into sentencing. In fact, some argue that guidelines and mandatory minimums create a “hydraulic displacement” of discretion from the judge to the prosecutor, whereby prosecutors make the critical decisions and the judge is left with certifying what the prosecutor and defense have negotiated.8 I do not want to belabor this issue, but as guidelines are written and implemented, they are filtered through various decisions and recommendations that need to be considered. Most commissions try to provide for the participation of these agencies in the writing of the guidelines and often involve working with these agencies in the implementation phase as well as the follow-up to assess the actual impact of the guidelines. But as we know the culture of courts varies across court communities such that the implementation of guidelines is filtered through many different court cultures.9 How prosecutors apply such things as enhancements or measures such as the amounts of drugs, weapon use, and so on, are all vulnerable to modification and/or manipulation by court actors. When I worked with the USSC, probation officers complained as to the manipulation of the guidelines by assistant U.S. attorneys. Guidelines are in effect telling both federal and local state courts that their practices need to change. Individuals and organizations resist such changes. As one first assistant U.S. attorney told me regarding their prosecution, “We do not federally prosecute offenses that involve less than 50 grams of crack cocaine. The sentences are too severe, and our focus should be on mid-level dealers not street dealers.”10 This statement reflects two important factors. First, their normative culture in this district was to focus on what they viewed as the more serious drug offenders. Second, he thought the federal sentencing guidelines and the mandatory minimums for crack cocaine were unfair. When we attempt to impose unjust outcomes such as those for crack, there are adjustments to attempt to “correct” this unfairness. How they do so and for whom raises the potential for a tremendous disparity.This brings me to the last issue I want to raise today and implied by the assistant U.S. attorney quoted above. For many offenses, particularly gun and drug offenses, there is dual jurisdiction such that the crack cases not prosecuted federally can be prosecuted under state statute. This means that whether a case is prosecuted under federal law versus state law can have a tremendous impact on defendants’ sentences. The resulting disparity is unacceptable from a system of justice that professes fairness. The disparity of where a case is prosecuted must not be ignored. Fairness demands we consider in the future the federal/state nexus and its impact on justice. I am not encouraging states to create or modify their guidelines to be more like the federal penalties, but I believe this decision opens a significant pathway for unwarranted disparity. The point is that we have built in disparity, depending on policies within each state where cases are prosecuted. I suggest researchers examine the sentences for similarly situated defendants and the potential disparity within and across states in the flow of cases between state and federal jurisdictions. I have watched county-based prosecutors in Pennsylvania use the threat of federal prosecution to encourage pleas to higher-than-normal “going rates” in the county. This may be efficient in moving cases when state and federal sentences are very different, but it undermines justice.Finally, I want to applaud all the staff—and I mean all the staff—that ensure that sentencing commissions continue their path to greater justice. I am biased toward the tremendous importance of the staff to the functioning and success that commissions across the country have achieved. Staff are the glue that provides the foundation for sentencing commissions, and I know that each day you each put the goal of a better and fairer justice system at the forefront of your efforts. Sentencing commissions face a legislative world that often prefers simple and uninformed policies such as mandatory minimums to solve complex problems. Sentencing commission staffs provide one antidote to mandatory minimums through its research and the research and work shared at NASC conferences and from the network it provides. The hard and long-term work of the USSC in attempting to address the cocaine mandatory minimums of the 1980s illustrates the dedicated, difficult, and arduous paths to justice.Thank you for your time and this award. I treasure being invited here today and to have been given the opportunity to once again attend a NASC conference.