The Anti-DACA Judge

Everything is Bigger in Texas, Except for Data Transparency

Judge Andrew Hanen — a federal judge from the Southern District of Texas — ruled yesterday that the Deferred Action for Childhood Arrivals program is illegal. This program, known more popularly by its abbreviation of DACA, is a U.S. immigration policy established by the Obama administration in 2012. It allows certain undocumented individuals who were brought to the United States as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit.

Hanen’s Judicial Journey

Hanen, appointed by George W. Bush, has now ruled against DACA for the second time. His initial ruling was in 2021. A tidbit about Hanen’s appointment: he was first nominated by Bush Sr. in 1992. That nomination didn’t go through, so Bush Jr. made sure to get it done in 2002.

Noteworthy Moments from Hanen’s Past

Here are a few noteworthy moments from Hanen’s past:

• In 2013, while sentencing an unrelated case, Hanen took the opportunity to write an opinion criticizing the policy of reuniting children with their undocumented mothers. Moreover, he complained about the Department of Homeland Security’s choice not to prosecute these mothers. Quite a tangent for a case that wasn’t about immigration.
• In 2015, Hanen moved to block implementation of Obama’s Deferred Action for Parents of Americans (DAPA) program.
• This block was contested, ultimately landing in the Supreme Court as United States v. Texas (2016). As he waited to learn if his DAPA ruling would hold, Hanen made an eyebrow-raising demand: he wanted about 3,000 Department of Justice attorneys across 26 states to undergo ethics training. Moreover, he sanctioned those linked to the Texas v. United States case. He accused the Justice Department’s attorneys of deceit during the case proceedings and, in a move of apparent frustration, banned them from his courtroom. Even more nonsensically, his demands also targeted attorneys fully unconnected to the case. Later, he backed down from all these demands. All this… reminding us that sometimes judges are the source of, rather than witness to, courtroom drama.

Federal district court judges, entrusted with constitutional rulings, civil cases, and criminal trials, have significant influence over diverse facets of justice. In light of Hanen’s consistent rulings against DACA and DAPA, one can’t help but hypothesize: could such decisions be indicative of racially biased sentencing patterns?

Racial Bias in Sentencing: The Big Picture

Here’s a brief overview of what we know about racial bias in criminal sentencing:

The million-dollar question is: which specific judges exhibit the most racially biased sentencing patterns? The challenge lies in the fact that we’re kept in the dark regarding the information needed to answer this crucial question.

The Quest for Transparency

Our primary data source on federal district court sentencing is the United States Sentencing Commission. They publish comprehensive annual data on criminal sentences. However, this data omits crucial details like the judge’s name and the case number. Thus, we’re handed anonymous sentencing records, devoid of context. Make no mistake, this is by design. The Judicial Conference of the United States has explicitly expressed their preference for this setup.

Here’s why this choice is so disappointing. A Supreme Court case, Richmond Newspapers Inc. v. Virginia (1980), declared that criminal courtrooms should be open to the public. Theoretically, we could jet-set around the nation, attending court sessions, noting which judges are meting out which sentences and to whom. Yet, in reality, that’s not a practical approach. In summary, the judiciary has opted not to grant us easy access to information that, constitutionally, we should have.

The lack of transparency from the judiciary isn’t just a bureaucratic hurdle. In the absence of clear information, it becomes challenging to hold our judiciary accountable for potential biases.

Confronted with this institutional opacity, my collaborators and I decided to take action. Specifically, we undertook an initiative to re-identify judges within the federal data, successfully doing so for around 600,000 cases, which we subsequently made public. I am incredibly proud of this work. Of course, it has limitations, including our inability to re-identify judges in a few specific judicial districts that are especially secretive. One of those districts is the Southern District of Texas, where Hanen is. In other words, there’s no federal district where we know less about individual judge sentencing patterns than Hanen’s district.

Before you suggest I request the missing information via FOIA, it’s important to note that FOIA only applies to federal agencies within the executive branch. The judicial and legislative branches don’t have an analog.

Now, circling back to Judge Hanen, one can’t help but to be curious about his own transparency and his decisions. Of course, any judge could organize and release information about their cases. All I’d need from Judge Hanen is a list of docket numbers — the case identification numbers — of cases he has heard. Either Hanen or one of his clerks should be able to produce this list in just a few minutes. If he refuses, am I allowed to send him to ethics training?

Your neighbor,

Chad