Software to compare sentences expanding statewide
A Jacksonville attorney who last year put together a pilot program to allow comparing of sentences handed out in similar cases in the Fourth Circuit has now expanded his database statewide and is hoping to interest judges in using it when they sentence defendants.
A. Wellington Barlow said his Equity in Sentencing Analysis System (ESAS) has now incorporated statewide 2.1 million Florida Department of Law Enforcement records maintained through the Department of Corrections from October 1, 1998 through June 30, 2017, and the tools to allow users to quickly compare sentences from similar cases.
His goal is simple and summed by one judge who viewed Barlow’s ESAS presentation: “It does what the original sentencing guidelines were adopted to do, foster equitable sentencing for similarly situated criminal defendants.”
Ironically, his system is up and running as new state legislation passed earlier this year calls for a pilot program to study fairness in sentencing. Barlow can’t offer ESAS for the pilot as the legislation calls for selecting a national, non-profit provider. Barlow is local and, along with the two nonlawyers who helped him developed ESAS, has incorporated as Technologies for Justice, a private company. The state pilot is expected to take two years.
“For a fraction of what they spend on that pilot, we could put this in every circuit in the state of Florida,” he noted.
Last year, Barlow had his own pilot up for the Fourth Circuit. Now with the new records, he’s ready to go anywhere in the state.
Merchandising the program isn’t his goal — he wants judges to use it to reduce sentencing disparities. Barlow has approached judges and chief judges to show ESAS’ potential and is hoping to get a tryout in a circuit.
Barlow ran through a PowerPoint presentation about disparate sentencing and a demonstration of the ESAS website for the Bar News. (At the moment, the site is not available to outside users.)
The presentation notes that the Florida Constitution guarantees equality under the law and “No person shall be deprived of any right because or race, religion, national origin, or physical disability.”
It then relates that the purpose of sentencing scoresheets in criminal cases was to bring uniformity to sentencing, but instead has shown disparities statewide that undermine confidence in the legal system.
Barlow wanted ESAS to reflect a number of factors: the statutory charges, sentencing dates, the amount of sentencing guideline points in the case and the sentencing range called for by those points, whether there was a trial or a plea bargain, the actual sentence imposed, the sentencing judge, the defendant’s race and gender, the case number, and the defendant’s name.
Users can take the case numbers from the data and then check court records to see if defendants had private counsel or were represented by public defenders.
“The more data that a judge can have at his or her disposal, the more that can make an educated system,” he said.
He has a couple of motivations. One is a defendant he represented in an eight-year-old criminal case. The client was acquitted on one charge and convicted on a second (it’s the one he still thinks about at night.) A recent high school graduate without a record and football scholarship offers at two colleges, his client received a 15-year sentence, the maximum under the guidelines.
A month before, another defendant with the same background and number of sentencing points got an eight-year sentence for the same crime. Barlow attributes that to a more experienced judge handling the latter case and being less influenced by the prosecutor’s recommendation of the maximum sentence. (With an eight-year sentence, his client would be out now.)
The second inspiration was a recent series by the Sarasota Herald Tribune on racial bias in sentencing. Although judges protested that their hands were largely tied by plea bargains, there was general agreement that race played a factor in sentencing.
The next day, Barlow began sketching out his goals for what became ESAS.
When it was complete, he ran his client’s information through ESAS and it returned around 17 cases with the same sentencing guideline number and another 21 similar cases. Sentences ranged from one year of community control to 15 years — only two, including Barlow’s first-time-offender client, got 15-year sentences.
Of the cases that went to trial, his client was the only one to get a 15-year sentence; at the time of his sentencing no similarly convicted defendant had received more than eight years.
Although ESAS could easily be used to look at race or other factors in sentencing, Barlow said that’s not his goal, particularly since it’s generally acknowledged there are problems with sentencing, which led to the passage of the legislation earlier this year. He’s also convinced that the vast majority of judges want to be fair and do the right thing, but lack information to help reach that goal.
“I’ve never looked at trends. What they [the Herald-Tribute ] did was great, it shows the problem this was created to resolve,” he said. “What this system does is it shows the judge what they’re about to do and whether it’s fair. It’s going to be up to the judge’s conscience, morality, and background if they want to go ahead.. . . This system will show a judge what’s about to happen.. . .
“I want judges to know that this is a system that can prevent them from being falsely accused of treating defendants differently. It’s like a check and balance. At the click of a button, they can look at what prosecutors are recommending and can see if it’s an outlier.”
That has a couple benefits. It protects citizens from disparate sentencing and well-intentioned judges from allegations of unfair sentencing, he said.
ESAS can also be tailored to a judge’s preferences. If the judge doesn’t want, say, the age or race of the defendant to be shown, that can be omitted.
Although he’s mostly not interested in “trends,” Barlow has noticed a couple interesting statistics. One is that defendants who go to trial tend to wind up with longer sentences than those who plea bargain, even though sentencing points are the same. The second is defendants with private counsel tend to get longer sentences, all other factors being equal.
Barlow has a theory about that.
“A lot of the time, public defenders and state attorneys develop a rapport with the judges; they’re in there every day and they’ve got to get that calendar down,” he said. “A lot of times public defenders get a better deal because they’re working with the judge to get rid of those cases.”
After testing ESAS with judges in court, Barlow plans to make the system available to lawyers, although those details are still being worked out.
“We are going to create a means by which attorneys subscribe,” he said. ‘We can set them up on an annual subscription or can do it on an as-needed basis. That’s the last leg of this; we haven’t gotten to the last leg yet.”
In the meantime, Barlow is willing to make presentations to interested parties in exchange for covering his travel expenses. The Bar has authorized 2.5 CLE credits for those who watch the presentation, including 0.5 technology credits.
He can be reached through Technologies for Justice at 855-845-3727 (which spells out T4J-ESAS) or at [email protected] gmail.com.