Domination & dissatisfaction: prosecutors as sentencers.

• Author: Miller, Marc L.

INTRODUCTION I. ARE THE GUIDELINES WORKING? A. Congress' Purposes in the Sentencing Reform Act 1. Undefined disparity 2. Incomplete honesty 3. Partial implicit severity 4. Missing knowledge B. A System in Constant Flux, with Huge Variation II. DISSATISFACTION AS A MEASURE OF SUCCESS: (ALMOST) EVERYBODY DESPISES THE GUIDELINES A. Judges Dislike the Guideline Structure and Substance B. Congress Dislikes the Guidelines in Operation C. Post-Feeney Furor III. (SENIOR) FEDERAL PROSECUTORS ARE HAPPY: IT'S GOOD TO BE KING IV. ALLOCATING SENTENCING AUTHORITY: SEPARATION OF (SENTENCING) POWERS A. Implementing the Idea of Knowledge-Based Reform B. The Honesty and Disparity-Reduction Virtues of Eliminating Mandatory Penalties: Lessons From 1970 CONCLUSION INTRODUCTION

Since 1984 the federal sentencing system has undergone a transformation that is both radical and reactionary. Every piece of the system has changed, including the allocation of sentencing authority, the type and severity of federal sentences, and the crimes that are the principal focus of federal attention.

Some of these dramatic changes are the product of the Sentencing Reform Act of 1984 ("SRA"), which created the United States Sentencing Commission and authorized the promulgation of sentencing guidelines. The SRA changed the formal role of actors in the federal sentencing system. It added one key actor: the Federal Sentencing Commission (Commission). It removed another key actor from the preguidelines process: the Federal Parole Commission. The SRA changed the role of trial and appellate judges, prosecutors and defense attorneys, and federal probation officers.

Other changes are the product of subsequent legislation, a series of executive branch policies (and ongoing and visible tension between official policy at the Department of Justice and the activities of line prosecutors in the field), the active engagement of federal courts, and a federal legal culture constantly shifting and realigning under multiple pressures.

Changes in sentencing patterns over the past twenty years include a dramatic increase in the length of federal sentences, a monumental shift towards incarceration and away from use of straight probation, a dramatic increase in the size of the federal prison population, and a significant increase in the proportion of drug offenders, especially lower-level drug offenders, in the federal system. This system loves punishment.

There have been process changes as well, including, most importantly, a steady and largely unexplored decrease in the federal trial rate. This system hates trials.

Among the strangest products of the new system has been open warfare between key actors about both policy and application. The battlefield and alignment of the forces, however, has shifted over time.

At first judges and the Commission battled each other, with Congress lobbing occasional grenades into the fray (typically in the form of new crimes and new mandatory minimum penalties). Fighting on the flanks then broke out between judges and federal prosecutors, and between the Commission and federal prosecutors. Internal conflicts surfaced within the Department of Justice (between "main justice" and both individual districts and line prosecutors), within the judiciary (among judges generally, and between sentencing and appellate courts), and within the Commission.

In 2003, Congress suddenly and unexpectedly moved back to the front and reshaped the entire conflict, strengthening its own role and that of the Department of Justice, and aiming a policy sword directly at the heart of the judiciary. As of 2003, it has become increasingly clear that this system dislikes sentencing (trial) judges.

While in 1984 it would have been odd to imagine the federal sentencing system becoming a part of public discourse, the federal guidelines have become a steady source of public debate, including a stream of newspaper stories, editorials, and op-eds. (1)

The generally controversial nature of the federal guidelines system during the fifteen years of the guideline regime notwithstanding, how can we tell if the federal guidelines system is "working," (2) if it has turned out to be a good or bad system?

One traditional and familiar way to assess a system is to ask what the goals of the system were and then to see if those goals are being achieved (or if at least they are being achieved better than when the system was put in place). This Article therefore begins with a brief description of Congress' goals in the SRA. This Part reveals that the goals of the SRA and the priority among them have proven surprisingly elusive. The difficulty of clearly stating the goals of the SRA might seem surprising, given its long gestation period, its status as one of the most significant efforts at systemic law reform in the last half of the twentieth century, and the substantial level of bipartisan Congressional support it received (including a 91-1 vote in the Senate). (3)

A detailed study of the goals of the SRA is now largely an historical exercise and no longer central to the question of whether the guidelines are working. The federal sentencing system we have in 2004 would have been unimaginable to the Congress in 1984, and would not have received the broad support that the SRA received. The federal sentencing guidelines system has so changed since its original statutory conception that the system now is fundamentally different, in form and purpose, than the system Congress created with the SRA. (4)

Scholars have not recognized the fact of fundamental change in the nature and purposes of the system. It is therefore not surprising that there has been no formal or systematic effort to restate the principles and goals of the guidelines system. If we have a system different than Congress envisioned in 1984, the Commission introduced in 1987, or whose constitutionality was affirmed by the United States Supreme Court in 1989, then scholars might simply modify the traditional task of statutory interpretation, perhaps in line with the concept of "dynamic" interpretation. (5) A dynamic approach would try to interpret the range of statutes that have modified, enhanced, and undermined the SRA.

But a more dynamic effort at statutory interpretation would again fall short of the goal of assessing whether the guidelines we have now are working or working well. The many plausible purposes now woven through the evolved federal system make it much harder to assess its success directly. Moreover, even a defensible statement of the current set of plausible purposes might leave unaddressed important aspects of how the guidelines are actually functioning and applied. The federal sentencing system has been and is likely to remain a moving legal target. While statutory intent (as evolved) might be the most traditional question for academic lawyers, it is an inadequate framework for analyzing the federal sentencing system from either a legal or policy perspective. These many conceptual barriers to direct assessment of system success suggest the importance of finding other methods to reveal how the system is working. (6)

In contrast to divining the complex, multiple, and evolved purposes of the system intended by Congress in 1984 or in 2004, I suggest a measure of success not tied to Congress' intent: how the actors in the system view it and use it. (7) The evidence that the federal sentencing system is failing comes from the fact that most actors hate the system and that one set of actors-policymaking federal prosecutors at the Department of Justice--love it. The failure illuminated by the views of actors is an unwise allocation of sentencing authority (who should sentence criminal offenders). Certain kinds of allocations of authority are dangerous or worse. Policymaking prosecutors at the U.S. Department of Justice love the guidelines because they dominate the federal sentencing process.

The excessive prosecutorial power in the federal system, revealed in multiple ways and confirmed by the views of key actors, invites abuse and is therefore a failure of justice. The solution to this failure comes from a return to general principles of American government. Americans are rightly suspicious of placing excessive power in any one branch of government or in any single government agency. The quintessential response to the threat of excess power is to design checks and balances into the system. One classic form of checks and balances is the separation of powers which, in its broader conception, includes not only attention to differences in legislative, executive and judicial functions, but also a fondness for sharing and distributing important powers across different government agencies and actors.

This Article highlights the need to apply these broad principles of American government to the allocation of sentencing authority.

The last Part of this Article considers whether, in light of the improper allocation of sentencing authority, there are possible steps toward a better system, of the kind the Congress imagined in 1984, and of the kind that has been achieved in some of the states. Most of the recommendations focus on one of the less prominent purposes of sentencing reform: the goal of bringing knowledge (and perhaps even wisdom) to bear on the creation of sentencing rules.

In pursuit of the goals of honesty and avoiding unwarranted disparity, I also reaffirm the widespread and longstanding calls for abolition of mandatory minimum penalties. Close observers of the past twenty years of federal sentencing reform might be tempted to treat discussion of further federal reform, and especially structural reform, as purest fantasy. They would point to Congress' harmful and sustained role in federal sentencing since the SRA, capped by the Feeney amendment and other Congressional antics in 2003. Looking before the SRA, however, reveals an important but forgotten Congressional episode, with a key role played by none...