Cleaning up the chicken coop of sentencing uniformity: guiding the discretion of federal prosecutors through the use of the Model Rules of Professional Conduct.

• Author: Secunda, Paul M.

Among his other endeavors, the public prosecutor strives to maintain an upright stance in the stained halls of criminal justice. He correctly senses that the people demand more of him than diligent, workmanlike performance of his public chores. Virtue is the cherished ingredient in his role: the honorable exercise of the considerable discretionary power with which our legal system has endowed his office. Daily, the ethical fibre of the prosecutor is tested -- and through him, in large measure, the rectitude of the system of justice. -- H. Richard Uviller(1)

[T]he guidelines ... have ... effected what may be the most fundamental change in the criminal justice system to have occurred within the past generation. -- Judge Harold H. Greene(2)

When H. Richard Uviller wrote about the virtuous and vaunted character of the American prosecutor, he did not overstate the importance of the prosecutor's "honorable exercise" of her considerable discretionary power. The public's confidence in the criminal justice system is greatly influenced by the way its most visible and vocal representative exercises her vast discretion.(3) When Uviller wrote in the early 1970s, however, the prosecutor's discretion was still limited by the ultimate arbiter of criminal sentencing, the federal district judge. If the judge felt that the prosecutor was too harsh, or perhaps too sympathetic, she could craft a sentence that fit her experienced notion of justice. Although this indeterminate system of sentencing allowed for individualized justice in specific cases, it also led to unwarranted sentencing disparities resulting from the variegated proclivities of sentencing judges.

As a response, the Federal Sentencing Guidelines(4) (the "Guidelines") were enacted to rein in the discretion of federal judges. The practical result, however, has been the vast accretion of prosecutorial discretion.(5) Because of the determinate nature of the new sentencing system, decisions about how to charge a crime have become, in many cases, tantamount to imposing the actual sentence.(6) The increased importance in prosecutorial charging decisions has, in turn, enabled the prosecutor to determine the parameters of plea bargaining before the negotiations have even started.(7) In addition, relevant conduct not proven at trial can be admitted, to enhance a sentence, at the prosecutor's discretion at the sentencing hearing under a less-pressing preponderance of the evidence standard.(8) Finally, the prosecutor exercises unfettered discretion regarding whether to file substantial assistance motions with the court to recognize a defendant's assistance.(9) The unsurprising effect of the accumulation of unguided discretion may be the defeat of the principal purpose for the Guidelines: increased fairness and uniformity in federal sentencing for similarly situated offenders.

Federal prosecutors lack ethical guidance as to how to exercise their newly found discretion.(10) Although the Model Rules of Professional Conduct ("Model Rules") address the special responsibilities of prosecutors,(11) the duties imposed primarily concern pretrial procedures(12); for other areas of prosecutorial responsibility, the Model Rules prescribe only a general "do justice" principle.(13) The Department of Justice ("DOJ"), which has authority over individual Assistant United States Attorneys ("AUSAs"), has also failed to implement effective regulations,(14) and the American Bar Association's recently revised Standards for Criminal Justice: The Prosecution Function ("ABA Standards")(15) are merely advisory and seem to have little influence on prosecutorial behavior.(16) This lack of guidance has left a vacuum, which, if not filled, might lead federal prosecutors to follow their own notions of justice at the cost of fairness and uniformity in sentencing. This Note argues that a specific Model Rule of Professional Conduct should be promulgated to apply to federal prosecutors making decisions that may impact sentencing. I advance proposed Model Rule 3.8(h) with explanatory commentary. As a baseline principle, the rule first provides that all decisions that may impact sentencing, including decisions regarding substantial assistance motions, should be made in a fair and uniform manner. The rule then requires, in an effort to avoid the inequitable use of plea bargaining and the use of relevant conduct during the sentencing hearing, that federal prosecutors, to the extent possible, disclose from the outset any and all information relevant to sentencing during the initial charging decision. Lastly, the rule specifically prescribes an benchmark of inappropriate behavior: making the severity and number of convictions the index of a prosecutor's effectiveness. The intended effect of proposed Model Rule 3.8(h) is to promote fair and uniform federal sentencing by guiding federal prosecutorial discretion, and, at the same time, to allow enough latitude for prosecutorial ethical introspection.

Part II of this Note compares the Pre-Guidelines sentencing system to the present scheme and highlights the growth of prosecutorial discretion under the latter. Part III examines the unique role of the prosecutor within the criminal justice system and argues that the distinguishing characteristics of the prosecutor make him the appropriate target for new ethical provisions. Part III also discusses the lack of ethical guidance currently supplied by other rules, standards, and regulations, and argues that the current ethical system is no longer suitable in the federal sentencing arena given the expanded role of the federal prosecutor. Part IV attempts to determine what type of ethics rule is appropriate to properly guide federal prosecutorial discretion in decisions that may impact sentencing. Part IV concludes by proposing such a rule with accompanying commentary.

2. Federal Sentencing Before and After the Federal Sentencing Guidelines

   1. The Federal Prosecutor Under the Pre-Guidelines System

      For almost a century before the enactment of the Sentencing Reform Act of 1984, the federal courts employed an indeterminate system of sentencing.(17) Criminal sentences were determined through the interaction of the various players of the criminal justice system: prosecutors, defense attorneys, probation officers, parole commissioners, and sentencing judges.(18) The prosecutor, in particular, possessed broad discretion to affect sentences by her allocation of investigatory resources and her initial decision to charge.(19) In addition, prosecutors played a powerful role in the many cases that concluded in plea agreements.(20) The prosecutor and defense attorney sometimes even worked together during plea bargaining to manipulate charges and limit the defendant's sentence.(21)

      Under the Pre-Guidelines system, judicial discretion in sentencing was virtually infinite, constrained only by broad statutory limits.(22) The sentencing judge nearly always had wide latitude to determine "whether the [accused] should be incarcerated and for how long, whether he should be fined and how much, and whether some lesser restraint, such as probation, should be imposed instead of imprisonment or fine."(23) In the seminal case of Williams v. New York,(24) the Supreme Court established that the judge could consider all types of relevant information when sentencing even if inculpatory statements or evidence had been obtained outside the courtroom from persons whom the defendant had not been able to confront or cross examine.(25) Under this system, any authorized sentence based on the available information would likely survive appeal, and the judge's personal preference essentially determined the sentence.(26) The judge's discretion was further augmented by his power to suspend sentence and impose probation.(27) As a result of the wide sentencing latitude that judges enjoyed, the prosecutor's decisions regarding charging and plea bargaining only established the defendant's maximum exposure.(28)

      The prosecutor's power was further circumscribed by another player in the sentencing process, the United States Parole Commission. After the sentencing judge imposed a prison term within the broad range of the statute, the Parole Commission could release the prisoner on parole.(29) As a matter of practice, the prisoner could be conditionally released after serving one-third of the judicially fixed term.(30) Because the actual release date in this indeterminate system of sentencing was determined by the Parole Commission, the prosecutor's power Pre-Guidelines was further diluted.(31) Summarizing the dynamics of the Pre-Guidelines sentencing system, one commentator stated that "[t]he sentencing process ... [was] best described as an arrangement of overlapping discretion.... [No] one perspective [could] dictate the offender's sentence."(32)

   2. The Federal Prosecutor Under the Federal Sentencing Guidelines

      Given the operation of the Pre-Guideline system, it is hardly surprising that there was wide disparity in sentences and time actually served for the same criminal conduct, varying from judge to judge and from district to district.(33) The discrepancies arose because judges were given wide ranges within which to sentence, and there was no anchoring point from which to begin.(34) Fundamental and widespread dissatisfaction with the uncertainties associated with the system resulted in a reassessment of how federal sentencing should be conducted.(35)

      In 1984, Congress passed the Sentence Reform Act (the "Act"),(36) which abolished the Parole Commission and adopted a new system of determinate sentencing. The Act established the United States Sentencing Commission, which was empowered to promulgate new federal sentencing guidelines.(37) The Guidelines went into effect November 1, 1987.(38) The Guidelines' purpose was threefold: to combat crime through an effective, fair sentencing system; to achieve reasonable uniformity in sentencing by narrowing the range of...