Guided to injustice? The effect of the Sentencing Guidelines on indigent defendants and public defense.

• Author: Hall, Joseph S.

"The effect of all system is apt to be petrification of the subject systematized."(1)

1. INTRODUCTION

   A popular prison joke among inmates is that no one really committed the crime they are serving time for; they are there because their lawyers blundered.(2) And while this is understood as a shared laugh among prisoners, this Note illustrates how this situation is increasingly true for a subsection of defendants under the Federal Sentencing Guidelines (the "Guidelines")--namely those defendants who were represented by public defenders.

   With the transition to the Guidelines in 1987, the defense lawyer's role in sentencing fundamentally changed.(3) A defendant's sentence is now determined, in large part, by the prosecutor's decisions and the public defender's adeptness in manipulating the Guidelines, as compared with the previous system in which the judge was almost solely responsible for the sentence.(4) Constraints upon defense resources as well as the prosecutor's zeal in attempting to secure a plea, or a high sentence in the absence of a plea, now effectively determine the length of a defendant's sentence.

   With this change, those represented by public defenders are especially disadvantaged. Since the public defender may not have the time, resources, or facility with the Guidelines to advocate effectively for a shorter sentence, she must ration her time between trial preparation and efforts aimed at minimizing a sentence. Under the Guidelines, these efforts at sentencing frequently do not overlap with the issues the defender must present at trial, hence requiring additional research and investigation on the part of defense counsel. Moreover, institutional and political constraints on the public defender often push indigent defendants to plead guilty to avoid receiving a longer sentence at trial, even if they have good defenses or are innocent.

   Meanwhile, as the skill required for effective advocacy has increased drastically in the post-Guideline era, the standard for challenging the effectiveness of counsel has remained the same, and budgets for public defenders have fallen amidst political furor.(5) The result is that indigent defendants are even more disadvantaged under a Guidelines regime, and the rational prosecutor will often attempt to exploit this disadvantage to dispose of cases.

   While the quality of a defendant's defense contributed to her sentence under the previous regime as well,(6) this sort of sentence disparity was one of the evils that the Guidelines aimed to correct.(7) Instead of correcting this state of affairs, however, the Guidelines have exacerbated this situation by making a defendant's sentence even more dependent on the quality and nature of a defendant's representation. The Guidelines have also spurned a realignment of incentives that often prompts prosecutors to exploit disproportionately those who are represented by public defenders.(8) In addition to any concerns one should have about the fairness, equity, and justice of this situation, there is also good reason to believe that this inequality might lead to an increase in prison violence, a decrease in the aggregate level of law-abiding behavior among the general public, and a decline in the general efficacy of criminal sanctions as a whole.

   This Note explores the Guidelines from the frequently overlooked perspective of the defendant and the public defender designated to represent her. Ironically, as this Note demonstrates, one of the primary goals of the Guidelines, reduction of unwarranted disparity,(9) is actually aggravated by the Guidelines. Since many of the factors upon which sentences under the Guidelines rest are driven by intense factual inquiries,(10) a particular defendant's hope for receiving a lighter sentence is often heavily dependent upon any number of factors outside the Guidelines. Factors such as whether or not the defendant can afford a skilled attorney capable of making innovative legal arguments or performing detailed factual investigations have a profound influence on a defendant's sentence. The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney.(11) Those who are represented by public defenders are hardest hit by this shift in the balance of power, as these attorneys were the most overworked in the system before the Guidelines, and have become even more so under the new regime.(12) As a result, the public defender is less able to act as a "buffer" between the defendant and a long sentence that the defendant might receive if she elects to go to trial instead of accepting a plea. The level of resources now required to be an effective Guidelines lawyer often cripples the public defender's already overworked caseload. Consequently, the prosecutor is able to threaten indigent defendants with higher sentences if they choose not to accept the plea offer. The removal of the judge as an intervenor and overseer in the plea bargaining and sentencing stages means that prosecutorial targeting of indigent defendants as a means of disposing of cases goes unchecked.(13)

   Under these circumstances, many indigent defendants face a difficult decision: should they plead guilty and use their limited resources to mitigate the harshness of any sentence they might receive, or should they attempt to mount a defense on the merits or on constitutional criminal procedural grounds, knowing that they may face a much stiffer sentence if they forgo the plea?(14) Depending on how such defendants allocate their scarce defense resources, such a sentence may be almost solely in the hands of the prosecutor, as the judge cannot readily intervene for fear of being reversed on appeal.(15)

   The immediate question then becomes: How is this any different from the previous indeterminate sentencing paradigm, in which a given person's sentence might vary significantly based upon any number of factors, from the defendant's race to the identity of the sentencing judge? The answer to this question lies in the goals of the sentencing process and its petrification and objectification of inherent disparities. Whereas disparities in the previous system of indeterminate sentencing inevitably lurked in the background, the current system of Guidelines sentencing differs in two significant ways: any discretion that the judge might have exercised to check prosecutorial abuse is now legally foreclosed, and many defendants who might have chosen to plead not guilty and mount a defense under the previous indeterminate sentencing norm are now likely to channel their legal resources toward mitigating the potential harshness of their punishment.

   This Note aims to examine how the Guidelines have entrenched existing disparities based on the quality of representation even deeper into the federal sentencing process. Examination of this issue is vital not only because of its implications for our current federal justice system, but also because many states are now beginning to consider implementing sentencing guidelines of their own.(16) Part II of this Note examines the past and present role of the federal public defender in representing criminals, laying the groundwork for an understanding of how the Guidelines have distorted this relationship. Part III examines the history and purposes of the Guidelines, as well as changes in the dynamic between judges, defense counsel, and prosecutors. Part IV examines the Guidelines' direct results on the sentences of indigent defendants, showing how the Guidelines have even further distorted previous sentence disparities resulting from the (in)adequacy of counsel. Part V continues this analysis by referencing two cases decided under the Guidelines as examples, illustrating how the quality of representation affected both defendants. Part VI examines the effects that such inequalities can have in generally augmenting violence within the penal system, as well as throughout society, by employing a utilitarian perspective of the Guidelines. Part VII briefly discusses some possible solutions to these problems, as well as the practicality of each of these solutions.

2. THE FEDERAL PUBLIC DEFENDER AND FEDERAL CRIME

   This section discusses the history and the role of the federal public defender in the criminal justice system. It then turns to an explanation of how the underlying structure of the federal public defense regime has significant impacts on how individual public defenders make choices and function in a Guidelines world.

   1. Brief History

      In terms of long-term impact and notoriety, the Supreme Court's decision in Gideon v. Wainwright(17) stands close to the top of any list of landmark decisions. Its mandate, that citizens should not be forced to defend themselves against the state without the aid of counsel, has become a fundamental principle of our legal system. Twenty-one years later, the Court handed down Strickland v. Washington,(18) which gave teeth to Gideon's holding by requiring that counsel provided to indigent defendants to felony charges be effective in the course of trial.(19)

      For federal defendants, the right to appointed counsel in felony trials has existed since 1938,(20) with a right to appointed counsel in capital cases since 1932.(21) Congress passed the Criminal Justice Act of 1964 to ensure that indigent defendants received the benefit of effective assistance of counsel.(22) Today, public funds pay for defense counsel in eighty percent of the nation's felony cases.(23) Since the Court's decision in Strickland, however, public attitudes towards crime have changed markedly. Beginning with the Reagan Administration's declaration of a "War on Drugs," politicians have increasingly used the politics of crime as a symbol of their dedication to working for the polity. As a result, money spent on law enforcement and prisons continues to grow in attempts to combat the evils of crime. This increase in mobilization against...