Legitimacy and federal criminal enforcement power.

Author:Ouziel, Lauren M.
Position:III. Legitimacy, Street Crime, and the Federal Justice System C. Moral Credibility: Penalties, Perceptions, and Communities through Conclusion, with footnotes, p. 2301-2332
 
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  1. Moral Credibility: Penalties, Perceptions, and Communities

    When it comes to street crime, moral credibility primarily revolves around penalties. There is no disagreement as to whether armed robbery should be criminalized; the debate is simply over what the penalty for such conduct should be. While some might posit that the same cannot be said for drug crimes, in fact the public overwhelmingly supports criminalization of "hard" drugs such as powder cocaine, crack, and heroin. (228) The severity of the penalties associated with drug crimes and the concern that many drug offenders should receive treatment rather than imprisonment animate much of the debate over the "war on drugs."

    Moral credibility in street crime, then, turns principally on punishment, and the issue of punishment is morally fraught--all the more so for street crime because it primarily impacts the poor and minorities. What is the right sentence for a particular crime or a particular defendant? Is this question even answerable? And if it isn't, then what empowers a legislature or a sentencing commission to decree punishment? In particular, what inspires fidelity to the penalty-drafters' wishes? These questions underlie the remainder of this Part, which considers the extent to which federal penalties pertaining to street crime align with public and judicial views, the ramifications of moral credibility gaps within the federal system, and why moral credibility with respect to street crime might differ across federal and local forums.

    1. Moral Credibility in the Federal System

      Empirical data on public and judicial views of federal penalties reveal three salient facts. First, there is no "uniform" view as to the appropriate sentence for a crime; individual views differ, sometimes markedly. Second, despite the absence of uniformity on an individual level, with few exceptions federal penalties accord with median public (and judicial) views. And third, in the few instances where there is a significant gap between federal penalties and public and judicial views-what I refer to as a "moral credibility gap"--there are ramifications for federal enforcement power, albeit not at the extremes we see in some local county courts. This Subsection sets out data supporting the above points, and the next Subsection considers moral credibility's potential role in forum-based outcome disparities in prosecutions of street crime.

      Two important studies reveal an absence of uniform public opinion as to the appropriate sentences for federal crimes. In 1994, Peter Rossi and Richard Berk were tasked by the U.S. Sentencing Commission with undertaking the first (and, as yet, only) systematic study of public opinions of federal sentences under the Federal Sentencing Guidelines. (229) The Rossi and Berk study compared the Guidelines rules for determining sentences, and the resulting sentences, with the rules and sentences preferred by a representative sample of the American public. (230) It drew two principal conclusions. First, there was substantial variation among respondents with respect to appropriate penalties. 3 As the authors succinctly put it: "One person's two-year sentence

      may be the equivalent of another's four-year sentence." (232) Second, despite the lack of uniformity among respondents, the Guidelines penalties tended, in most cases, to approximate the respondent median or mean. (233) There was one glaring exception to this general trend: crack cocaine penalties. Median respondent views as to the appropriate penalties for crack offenses were approximately twelve years lower than existing federal penalties under statutes and the sentencing guidelines. (234)

      In 2010, the U.S. Sentencing Commission amassed federal judges' opinions of the Guidelines, along with statutorily-mandated penalties, through a detailed survey. (235) The Sentencing Commission's survey, while using a different methodology than the Rossi and Berk study, (236) likewise revealed a wide range of opinions on the appropriate sentences for given crime categories. For any given crime category, judges expressed differing views on the appropriateness of applicable penalties. But on the whole, a slight but consistent majority of judges believed both the Guidelines and statutorily-mandated penalties were appropriate--with the exception of crack cocaine and certain child pornography penalties. (237) Nearly three-quarters of surveyed judges believed that both Guidelines and mandatory minimum penalties for crack cocaine possession were too high. (238) The only other crime category for which judges expressed a similar view was possession and receipt of child pornography (an offense category on which Rossi and Berk did not canvass public views and for which, in any event, Guidelines penalties were then far lower). (239)

      What are we to draw from this data? On one level, it empirically confirms what criminal practitioners know to be true: when it comes to sentencing, moral beliefs can be wildly divergent. Indeed, the Guidelines were borne of the desire to mitigate this inescapable reality. On another level, though, the data reveals a less obvious trend: there is, to a large degree, moral alignment between federal penalties and average public and judicial views. How much might this alignment explain the relatively high degree of adherence to prescribed penalties within the federal system, at least with respect to street crimes? (240) Let us consider the two documented instances of moral credibility gaps in federal penalties and their ramifications for enforcement, sentencing, and penalty reform.

      Start with crack, a story that is, by now, well known. Congress decision to impose significantly enhanced penalties for trafficking in the base form of cocaine (crack) as opposed to the powder form (cocaine) began, after a number of years, to meet with a rising tide of disapproval from nearly all sides. Legal scholars, federal judges, the Sentencing Commission, and even law enforcement-including then-Attorney General Janet Reno--publicly criticized the crack/powder penalty disparity, both for its lack of grounding in scientific and criminological data and for the racially disparate sentences it generated. Anecdotal reports surfaced of jury nullification and judicial resignations. Though it took decades, Congress ultimately heeded the calls and amended the laws in 2010 to substantially lessen, but not eliminate, the crack-powder disparity. (243)

      Inside the courtroom, however, the crack story weaves a considerably more complicated narrative. In some respects, the disaffection did not generate palpable results. Defendants in crack cases cooperated at least as often as defendants in other narcotics cases. (244) Pre-Blakely/Booker, judges sentenced crack defendants to within-Guidelines sentences nearly as often as they did powder cocaine offenders. (245) And prosecutors continued to bring large numbers of crack cases, disposing of them without significant discounts. (246) The disaffection did manifest in sentencing post-Booker, when non-government-sponsored, below-Guidelines sentences for crack offenses began to increase steadily, at a rate and to a degree higher than for powder offenses. (247) Moreover, this trend immediately reversed following the enactment of the FSA. in just the quarter following its enactment, the amount of non-government-sponsored, below-Guidelines sentences decreased by about one third. (248)

      Now consider the story of child pornography penalties. (249) While the crack story might be characterized as one of public views diverging from static laws, the child pornography story is one of laws steadily and quickly moving off-track from public (or at least, judicial) views. (250) For more than three decades, Congress has steadily increased maximum penalties, added mandatory minimum penalties, and repeatedly directed the Sentencing Commission to impose harsher Guidelines penalties for child pornography offenses. (251) As a result, penalties for child pornography are now higher than for actual child abuse, a situation that strikes many judges as unjust. (252) The political story, too, is quite different. Apart from the vocal dissent of some federal judges, (253) there has been far less public outcry to Congress, at least as compared to what occurred in the case of crack penalties. (254) This may be in part because the divergence between penalties and views has become pronounced only fairly recently, with the enactment of the 2003 PROTECT Act. (255) Or it may be in part because the disparity between child pornography and child abuse penalties doesn't raise the disturbing specter of racially disparate outcomes, as did the crack/powder disparity. Or it may be because those who view and traffic in child pornography are simply less sympathetic as a political matter. Whatever the reason, there has been little in the way of genuine movement for penalty reform inside Congress, at least at present.

      Inside the courtroom, though, the divide between applicable penalties and judicial views has real effects. Non-government-sponsored, below-Guidelines sentences for possession, receipt, or distribution of child pornography, at nearly forty percent, far eclipse any other offense category. (256) And the degree of departure is substantial: sentences for such offenses are discounted by thirty-eight percent, which translates into a median discount of forty months--again, far above almost any other offense category. (257) Prosecutorial practices have changed, too: as penalties gradually increased, prosecutors offered more frequent and more substantial sentencing discounts to defendants. (258) And unlike in crack cases, at least some federal judges in child pornography cases have been reported to blatantly flout mandatory minimum penalties by throwing out jury verdicts and ordering retrials or threatening to advise juries of the mandatory penalties in direct disregard of permissible federal procedure. (259)

      How, then...

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