Fast-track sentencing: a potential solution to the divisive discretion.

• Author: Weber, Elizabeth
• Position: LAW SUMMARY

1. INTRODUCTION

   There are currently an estimated eleven million illegal immigrants in the United States, (1) and certain immigrant-dense regions have buckled under the weight of illegal aliens. (2) Fast-track programs, first established by proactive federal prosecutors and later sanctioned by Congress, were designed to more efficiently prosecute aliens who had illegally reentered the country. (3) These programs expedited prosecution by guaranteeing a defendant a lighter sentence in exchange for pleading guilty and forgoing certain procedural formalities. (4)

   However, the Department of Justice (DOJ) did not authorize fast-tract programs in all federal districts, leaving defendants in non-fast-tract districts complaining of unequal treatment between themselves and similarly situated defendants who could receive shorter prison terms. (5) Defendants in non-fast-tract districts asserted the unequal treatment warranted lower sentences for themselves, and a split developed among the federal circuit courts of appeals as to whether a district court in a non-fast-track district could grant a lower sentence based on the sentencing disparity. (6) A recent change in the DOJ's policy regarding authorization of fast-track programs offers a quick-fix to this problem: let every dependant charged with a certain crime, regardless of location, be eligible for al lighter, fast-track sentence. (7)

   This Summary examines the current federal sentencing regime, the establishment of fast-track programs, and the resulting circuit split regarding whether a judge can grant a defendant a more lenient sentence based on the lack of availability of a fast-track option in that jurisdiction. (8) Further, it discusses more recent developments regarding the circuit split and how the new DOJ policy purports to resolve the issue. (9) Finally, this Summary argues that while this change does solve the sentencing disparity problem, it conflicts with the congressional policy underlying the official sanction of fast-track programs. (10)

2. LEGAL BACKGROUND

   The starting point in determining any particular defendant's prison sentence is the Federal Sentencing Guidelines (Guidelines), which suggest a sentencing range based on the particular crime and the defendant's criminal history. (11) The lower sentences offered to fast-track defendants depart from the Guidelines; the departure is granted by prosecutors, rather than by the sentencing judges, and is only available to defendants in authorized jurisdictions. (12) Some background on the current federal sentencing scheme is helpful to appreciating the potential disparity problem created by these programs. Thus, this Part explains what is perhaps this country's most significant federal sentencing legislation, the Sentencing Reform Act of 1984, (13) and describes the Supreme Court of the United States' adverse reaction to the new system. (14) It then recounts the creation of fast-track programs, from their inception in the Offices of the United States Attorneys to Congress's authorization of the programs several years later. After describing the circuit split on whether district judges may grant lighter sentences based on this sentence disparity, (15) this Part considers an analogous circuit split and how it was resolved. (16)

   1. Federal Sentencing Reform

      Prior to 1984, federal judges, following a "medical" model of sentencing, (17) possessed wide sentencing discretion limited only by statutory maxi mums and minimums. (18) The advent of the parole system coupled with this broad judicial discretion made the federal sentencing system an uncertain one. (19) While a court's sentence would effectively determine the minimum or maximum sentence for a prisoner, the parole board had authority to determine the actual release date. (20) The uncertainty and arbitrariness of sentencing caused by this indeterminate system sparked a great deal of criticism, eventually leading to the Sentencing Reform Act of 1984 (the SRA). (21)

      Congress sought to accomplish two primary goals with the SRA: (1) "honesty in sentencing," and (2) the elimination of unwarranted sentencing disparity. (22) The goal of "honesty" was to ensure that "the sentence imposed by the judge [would] be the sentence actually served." To achieve this, Congress abolished the parole system for federal prisoners. (24) To remedy the problem of inconsistency in sentences, (25) Congress created the United States Sentencing Commission (the Commission) to establish federal sentencing policies. (26)

      As originally enacted, the SRA mandated, with a few exceptions, that a defendant's sentence fall within a range determined by the Sentencing Table prescribed by the Commission's Guidelines. (27) The Commission created the table using empirical data regarding past sentencing practices. (28) To calculate an appropriate Guidelines sentence, a sentencing judge would consult the Commission's Sentencing Table based upon an "offense level" (29) and the defendant's "criminal history category." (30) Thus, instead of giving judges free rein to sentence defendants based on their own individualized assessments of each case, the Guidelines required sentences within a predetermined range based on data of past sentencing practices. (31)

   2. Judicial Reaction to the Sentencing Reform Act and the Guidelines

      As intended, the SRA severely limited judicial discretion in sentencing for nearly two decades. (32) However, the Guidelines became advisory in 2005 after the Supreme Court of the United States struck down their mandatory aspect as unconstitutional in United States v. Booker. (33) In Booker, the defendant's conviction of possession with intent to distribute cocaine yielded a maximum Guidelines sentence of 262 months. (34) At the sentencing hearing, the district court judge determined, by a preponderance of the evidence, that the defendant possessed additional cocaine (35) and obstructed justice; considering these new circumstances, the district court calculated an enhanced Guide lines range of 360 months to life in prison. (36)

      The Court held that imposing the enhanced sentence violated the defendant's Sixth Amendment right to a trial by jury. (37) To comply with the Sixth Amendment, the Court concluded that any facts supporting an enhanced sentence must be either admitted by the defendant or proved to a jury beyond a reasonable doubt. (38) Because the Guidelines allowed a judge, rather than a jury, to find facts that would raise a defendant's maximum sentence, the Court severed the mandatory aspect of the sentencing statute, holding that a sentencing court must merely consider the Guidelines range as one factor among many in determining a sentence term. (39)

      Booker further defended the trial judge's discretionary power in sentencing by excising an amendment to the SRA that required departures from Guidelines sentences to be reviewed de novo. (40) As the Court noted, the motivation behind the amendment had been "to make Guidelines sentencing even more mandatory than it had been," and after holding the Guidelines to be advisory, this justification "ceased to be relevant." (41) In lieu of the de novo standard, the Court held that appellate courts should review sentencing decisions under the deferential reasonableness standard that existed before the amendment. (42)

      After the Booker Court described the Guidelines as a factor in sentencing, Rita v. United States shed light on the legal weight of the Guidelines by holding that a sentence within the Guidelines is presumed reasonable on review. (43) The Supreme Court of the United States concluded that a "within-Guidelines" sentence reflects the fact that both the Commission and the sentencing judge reached the same sentencing conclusion in a particular case, warranting the reasonable presumption. (44) However, this presumption only applies when an appellate court is reviewing a sentence; the Court later made clear in Gall v. United States that the district court judge, in considering section 3553(a) factors, "may not presume that the Guidelines range is reasonable." (45) While Rita's holding is only applicable when the Commission and a district judge are in an agreement, the Court acknowledged there would be times when a Guidelines sentence should not apply. (46) Just a few months later, the Court in Kimbrough v. United States squarely confronted the issue about what a district court is authorized to do when it does not agree with the Commission. (47)

      In Kimbrough, the Guidelines suggested a sentence of 228 to 270 months for a defendant who had been convicted of multiple offenses, including possession of crack cocaine. (48) However, the United States District Court for the Eastern District of Virginia deemed the suggested range to be "greater than necessary" and only sentenced him to 180 months. (49) In imposing the downward sentence, the judge considered the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." (50) For example, had Kimbrough possessed cocaine in powder form instead of crack, the Guidelines range would have only been 97 to 106 months. (51) The United States Court of Appeals for the Fourth Circuit vacated the sentence on the grounds that it was per se unreasonable for the district court to impose a sentence outside the Guidelines based on a disagreement with the sentencing imbalance between crack and powder cocaine offenses. (52)

      On appeal, the government argued that Congress, through the Anti-Drug Abuse Act of 1986, "'[i]mplicit[ly]' require[d] the Commission and sentencing courts to apply the '100-to-l ratio'" for crack and powder cocaine offenses, (53) warranting a necessary disparity arising from the sentences. (54) The Supreme Court of the United States rejected the government's claim and declined to find an implicit congressional directive behind the Guidelines' sentences. (55) Further, the Court refused to give much deference to the Commission's Guidelines in this case because...