Information Sharing in a Common Law of Sentencing: A Skeptic's Guide

Ryan W. Scott, Indiana University Maurer School of Law - Bloomington

Abstract

For decades, prominent scholars and judges have called for the development of a “common law of sentencing” in the United States. One strand of scholarship stresses the information sharing function of the common law: sentencing judges need access to a body of written opinions that reveals how other courts have handled similar cases. The idea is that, fueled by better information, case-by-case common law reasoning will promote inter-judge consistency and rationality in sentencing law.

This Article takes a skeptical view, identifying three sets of challenges for an information-sharing approach. First, there are daunting information-collection challenges. A healthy common law depends on written sentencing opinions that are comprehensive and representative of outcomes in similar cases. Yet because of high volume and acute time constraints, sentencing opinions overwhelmingly are unpublished, and written opinions are skewed toward unusual cases and prolific judges. Second, sentencing opinions must be not merely available, but also useful to judges, and experiments with sentencing information systems in foreign jurisdictions have confronted subjectivity, level-of-generality, and “garbage in, garbage out” problems. Third, there are voluntariness challenges. The experience of “sentencing councils” in the 1970s tends to undermine the assumption that judges will respond to information about previous sentences by aligning their decisions with past precedent. To the contrary, judges may simply disregard advice from previous cases, or may be vulnerable to confirmation bias and attitude polarization.

To illustrate those obstacles, the Article contains an original empirical study of sentencing information collection, using documents from a federal district court. Because the documents ordinarily are nonpublic, the study is the first of its kind in the United States. The study finds that judges seldom provide the kind of explanation necessary to support a common law of sentencing.

An information-sharing approach to sentencing reform is largely untested in the United States, and it may carry collateral advantages. But it is doubtful that voluntary information sharing can meaningfully reduce inter-judge disparity or promote rationality in sentencing law.