Federal sentencing in 2007: the Supreme Court holds - the center doesn't.

• Author: Richman, Daniel

INTRODUCTION I. DOJ CENTRALIZATION UNDER BUSH (II) II. "UNIFORMITY" IN FEDERAL SENTENCING: THE EXECUTIVE PERSPECTIVE III. CRITIQUE OF THE DOJ'S GUIDELINES PROJECT IV. THE PROMISE OF THE FUTURE CONCLUSION INTRODUCTION

Last year will go down in the chronicles of federal criminal law as the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales, dispatched from the White House to preside over the Department of Justice (DOJ), discovered to his chagrin that U.S. Attorneys can bite back--at least when Congress wants them to. After he resigned in the face of widespread legislative and public criticism over his role in the replacement of several U.S. Attorneys (among other things), his post was filled by Michael B. Mukasey, a Washington outsider with deep roots in the Southern District of New York. (1) In the Supreme Court, the trio of Rita v. United States, (2) Gall v. United States, (3) and Kimbrough v. United States (4) enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy, and individualized judgment merge. To be sure, a close reader might consider the trilogy simply an announcement that the Court meant what it said back in 2005 when, relying on the Sixth Amendment right to trial by jury, it declared the hitherto mandatory Federal Sentencing Guidelines to be advisory in United States v. Booker. (5) But reiteration befitted Booker, since the message of its two different majority opinions had yet to be fully assimilated by the Justice Department or the appellate law of many circuits. Now the discretionary license given to district courts across the country would be written in larger print. In a world with vanishingly few trials, the ultimate decentralized actor-the jury--in whose name this line of cases started, has pretty much dropped out of the picture except in Justice David Souter's Gall concurrence. (6) The year thus presented a stark contrast between the toppling of the most centralized actor and the celebration of nearly the least.

It is too early to predict precisely how the trio of cases will play out, or what the dynamic between Justice Department headquarters (the amalgam of political leadership and central bureaucracy often referred to as "Main Justice" (7)) and the U.S. Attorneys' offices in the far-flung districts will be under Attorney General Mukasey or the next Administration. But it is the perfect time to think about the potential implications for the interaction of sentencing policy and the federal enforcement system.

In contrast to the Supreme Court's sentencing cases, which at least until recently focused on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing I wish to highlight is Main Justice versus the districts. The story of the Federal Sentencing Guidelines ought to be seen not just as an exercise in branch checking--of judges by the legislature, with help from prosecutors--but rather as part of a hierarchical project on the executive side whose contours and consequences were barely dreamed about at the outset. This project did not necessarily have to become intertwined with federal sentencing doctrine and practice. One could imagine a sentencing regulatory regime that gave free rein to prosecutorial discretion and focused only on judges. One could also imagine exertions of authority by the executive center that would not be expressed in sentencing policies. But intertwine the projects indeed did, and we are working through the fallout from their entanglement.

One goal of this essay is to place the Justice Department's recent sentencing policies within the larger context of the Department's efforts to control U.S. Attorneys' offices. A second goal, both normative and diagnostic, is to show the incoherence of those policies, at least when applied to that large part of the federal enforcement docket charging offenders normally prosecuted by state and local authorities. Indeed, the demand for consistency in how federal prosecutors handled those cases nationwide merely reinforced the most problematic aspect of the federal enforcement system-an unaccountability arising out of the insufficient demarcation of its responsibilities. A third goal is tentatively to celebrate the Supreme Court's recent (re)establishment of reasonable judicial discretion as the touchstone of federal sentencing law.

One need not have special confidence in the wisdom of sentencing judges to join this celebration. Appreciation of prosecutorial competencies and capabilities should be enough. What has often been framed as "judicial discretion" might better be seen as a coordinate exercise in local norm setting--an exercise in which line prosecutors, through charging power and shared control (with agencies) over investments in information gathering, inevitably play a critical role. Whether prosecutors will be allowed to embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development, remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system--one in which prosecution and sentencing decisions become something more than an abstract exercise in number generation.

Part I limns the Bush Administration's centralization efforts at the Justice Department. While these efforts initially appeared aimed more at undecentralization, their direction was pretty clear even before the U.S. Attorney firings. Part II explores how the Administration's centralization project intersected with its sentencing policy, each reinforcing the other, with the Sentencing Guidelines used as a tool of hierarchical control and the Attorney General's authority deployed in service of the Guidelines. Part III takes a normative turn and explains how the Department's sentencing policies, when promulgated against the backdrop of a federal docket largely anchored in local concerns, compounded the lack of consistency inherent in the system. Finally, Part IV explains how the Supreme Court's cases, when coupled with changes in the Department's political leadership and policies, may open up a new space for collaborative sentencing lawmaking at the district level.

1. DOJ CENTRALIZATION UNDER BUSH (II)

   While the image of the overzealous prosecutor has its place in any doctrinal or institutional analysis of criminal justice pathologies, the risk of "shirking" looms as large here as in any other bureaucratic context. Prosecutors, and the agents or police officers they work with, (8) decide what cases to pursue; decide how much evidence to gather; assess the strength of the resulting case file; and conduct the negotiations that, if successful, will produce a guilty plea obviating the need for a trial at which their work could be assessed by others. There might be prosecutors who sometimes hope that negotiations break down and trials ensue. Trials are rare commodities in the United States, and trial experience is eminently marketable. (9) And there might be occasions in which a prosecutor prefers that a particular defendant gets a particularly high or low sentence. But the principal agency risk when it comes to sentencing is that, having threatened the highest sentence legally possible (or maybe even beyond that), the prosecutor will treat sentence years as currency to be exchanged for a higher conviction rate and maybe even personal leisure. (10)

   This generic analysis extends across all U.S. jurisdictions. Yet the federal criminal enforcement system has its own special agency problems. The basic structure and its historical roots are just the beginning of the challenge. The bulk of federal prosecutions are brought by the ninety-four U.S. Attorneys' offices, which are generally staffed by local professionals, many of whom will be leaving government service in the not-too-distant future. (11) These offices--which predate the Justice Department by nearly a hundred years--are headed by presidential appointees, who report (on paper at least) only to the Attorney General and his Deputy. Each appointee at least traditionally has had her own local power base, having been selected with considerable input from local political leaders. (12) Cases come to these offices or are suggested by a wide range of agencies that include federal enforcement bureaus, whose field offices may have local ties of their own, and local police departments. (13) And to add to these institutional design challenges is the very nature of federal criminal jurisdiction, which--with a few exceptional areas where federal responsibility for the "crime rate" is somewhat clear--confounds any effort to devise effective performance measures. (14)

   How have the federal enforcement bureaucracy's political principals responded to this degree of "slack" in the system? On the legislative side, the response over the past few decades has generally been a mix of acquiescence and self-defensive embrace. Through oversight and targeted funding, Congress regularly tries to shape prosecutorial priorities. (15) And the disclosures in the wake of the U.S. Attorney firings highlight the readiness of at least some legislators to be occasionally quite vocal in demanding zealous pursuit of certain cases or classes of cases. (16) But, at least until recently, the dominant pattern in congressional activity vis-a-vis U.S. Attorneys' offices has been to nurture their independence and their resistance to central control. (17)

   Efforts by the Chief Executive to exercise such control have varied from administration to administration. That George W. Bush's Administration would be committed to increasing the authority of the Attorney General and his minions in Main Justice over U.S. Attorneys and their assistants was clear from the start...