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One week after the Pennsylvania Sentencing Commission released its annual report on sentencing data, it caught flak for supposedly omitting data on race and gender from its reports. The Sentencing Commission data is a compilation of 107,684 sentences rendered by Pennsylvania common pleas judges in 1998. As stated in an Associated Press report, “A state commission dedicated to ensuring Pennsylvania’s courts are fair says it will not release information that could show whether individual judges tend to give blacks longer sentences than whites.” News of that limited release apparently raised concern. “Why would you do the research if you’re not going to release it to the public?” Allentown resident Richard P. Burton, a member of the NAACP’s national board of directors, told the Associated Press. “As citizens we ought to be able to have access to those kinds of things.” But the public will ultimately have access to the information, according to Sentencing Commission executive director Mark Bergstrom. “The Sentencing Commission is providing data on the race and gender of convicted offenders. That information is available in the complete data set and in our custom reports,” Bergstrom said. “In our complete data set, however, all judges’ names are stripped, as well as the social security numbers of convicted offenders. But anyone can order a custom report on an individual judge, and all race and gender information associated with that judge’s sentences are there.” “It isn’t unavailable information,” Bergstrom said. “It’s just unavailable in certain formats.” The information on gender and race does not appear in the commission’s “standard report 5,” he said. Although Bergstrom said people could order individual custom reports for each of the 361 judges, and they would find race and gender information concerning each judge’s decisions, he acknowledged few are likely to do that. Proceeding with Caution Bergstrom emphasized that the commission is not withholding information. He said the organization is simply being cautious in a brand-new undertaking. “We are concerned about misuse by the end-user. The commission’s view is that it doesn’t have any obligation to release this information at all, but it wants to. We just want to be sensible about it.” Currently, a requester needs to fill out a form asking for a report and specifying the reason for the request. The commission has sole discretion over whether to grant the request, and one cannot appeal under the Right-to-Know law. Bergstrom said the Sentencing Commission is not reachable under that law because it does not meet the law’s definition of an “agency.” “Right-to-know applies only to executive branch agencies, and we are part of the legislative branch,” he said. Bergstrom said the commission’s cautious attitude mistakenly gives some the impression that the commission is arrogant and withholding the information because it believes the public “cannot handle” the sentencing data. “I know some people think that. It isn’t true. We just want to be careful about identifying data people can use. If it is misused, this can have a very negative effect on judges’ careers.” The fear of the commission, he said, is that end-users will make claims based on the commission’s statistics that are inaccurate, or just wrong because they are taken out of context. “We’ve taken a lot of trouble to include contextual information. Like, for example, the fact that these figures do not apply to arrests. They are only data compiled on convictions,” said Bergstrom. “When someone misuses these numbers, our phone is the one that’s going to ring. So in that situation we couldn’t really respond; we’d have to say, ‘We’ll have to take a look at it. We didn’t have anything to do with it.’ But we don’t have the staff to do that, and we don’t want it to look like we sanctioned whatever anyone does with the numbers,” he said. Ultimately, Bergstrom said, the commission knows it is faced with the possibility that there will be misuses no matter what it does. It is just trying to put that off as long as possible, he said. Independence Asked how independent the commission is from the judiciary, Bergstrom said but for the commission, sentencing data would not be available at all. “At the public hearing in October 1998, the Pennsylvania Bar Association, the Philadelphia Bar Association and the Pennsylvania trial judges had 12 representatives testify that they did not want judge-specific information released,” Bergstrom said. “If we weren’t independent, we would have gone along with that. But we thought this was useful information people deserve to know. “It is an incremental policy process. I don’t think we’re quite there yet. But we have worked for 3 1/2 years to get this data released, and I think any change we make deserves as much careful attention,” Bergstrom said. “We need to be able to say, ‘We’ve done everything we could reasonably do [to prevent misuse of data].’” The issue of including race and gender data in the complete data set is on the table for discussion in August, when the commission will meet in Pittsburgh, he said. “It is quite possible the commission will change some of the policies on data formats,” he said. “You have to remember, race and gender are not relevant to the sentencing guidelines,” said Bergstrom. He noted, however, that although race and gender may not be mentioned in the guidelines, there can be disparate impact on different groups that’s worth exploring. “I don’t mean to sound like [race and gender] aren’t important. But this is the first time we’ve ever released judge-specific information, and I believe that we, as the sole providers of this data, have a responsibility to make sure we are not just dumping these numbers out there. We have to give it a pathway. The data is very confusing, even to us, and can be misrepresented.”

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