The Federal Courts and Public Oversight

The broad powers of the federal judiciary, the third branch of government, are set forth in our Constitution. The independence of the judges was guaranteed from the start by a short provision in Article III of the Constitution:

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."

In the later 1798 Judiciary Act, Congress specifically authorized the creation of Supreme Court with six members, 13 separate judicial districts in 11 states, and the position of attorney general.

All federal Article III judges, including district court judges, are nominated by the President and confirmed by the Senate. At the present time the 94 federal judicial districts have 677 district court "judgeships" with 67 vacancies. However, not counted in this total are many district court judges who continue their services after retirement. These "senior" judges handle, according to court publications, about 15 percent of the court's caseload.

In their day-to-day operations, the federal courts in many respects are an open book, especially when compared to Congress and the agencies of the executive branch. Public access to court proceedings is routine. Similarly, court records are generally available in either paper or electronic form.

This relative openness starkly contrasts to the executive branch where broad secrecy was the rule until the Freedom of Information Act (FOIA) went into effect in 1967. And still the public can have great difficulty in obtaining access to the records which, under FOIA, must be made public. Equally noteworthy is that in nearly five decades since passing FOIA, Congress has exempted itself from the law's disclosure requirements.

Admirable as the federal courts' transparency record has been when compared to the FBI, IRS, Department of Homeland Security (DHS) and Congress, there are aspects of its operations — such as the sentences imposed by individual judges — where systematic public examination has been resisted.

The public access to court records provided by PACER, for example, allows searches by names of parties and by counsel, but not by the names of federal judges. None of the numerous reports published by the federal courts and others present comparative sentencing statistics on individual federal judges. Further, the name of the sentencing judge is always excluded in the publicly available computerized case-by-case files on federal sentences produced by both the Federal Judicial Center and the Sentencing Commission. Indeed, when TRAC published results from its first attempts at compiling judge-by-judge sentencing records, we were immediately contacted by the Sentencing Commission staff to make sure that none of its data had been used in our project (it had not).

With over fifteen years of work involved in its development, TRAC plans to update on a regular monthly basis our extensive federal sentencing files which currently encompass over a million and a half magistrate and district court cases since FY 1992. With our new interactive judge tool, it is our hope that a new kind of independent oversight will be made possible so that the public, criminal defense lawyers, news organizations and the courts themselves can more easily examine the challenging and complex work of our federal district court judges in sentencing the tens of thousands of persons convicted of federal crimes each year.