Parity, disparity, and adversariality: first principles of sentencing.

• Author: Etienne, Margareth

INTRODUCTION: PLAYING FAIR I. THE PROBLEM OF PROCEDURAL DISPARITY IN FEDERAL SENTENCING II. RESCUING THE ADVERSARIAL SYSTEM FROM DISPARITY III. DISPARITY BASED ON STANDARD OF PROOF AT SENTENCING IV. DISPARITY FROM THE SHIFTING BURDEN OF PROOF V. DISPARITY RESULTING FROM SENTENCING COMPLEXITY CONCLUSION Rule 2: Play Fair. (1)

The constitution ... is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process "due process of law," by its mere will. (2)

INTRODUCTION: PLAYING FAIR

Stark theoretical and ideological differences abound regarding the purpose of punishment, the circumstances under which it can be imposed, and who holds the ultimate authority to impose it. Because these age-old debates are not likely to be resolved in the near future, should Congress decide to address the issue of federal sentencing again, it ought to begin its inquiry from a point of consensus. Are there "first principles" of punishment and sentencing on which most Americans can agree? What lessons have we learned from the last thirty years of sentencing reform and the past hundred years of criminal justice reform? One critical lesson has been that the connection between substance and procedure is quite formidable in virtually every aspect of criminal law. Procedural and substantive law ought to function together to create a justice system that is fair and reliable. Unfortunately, this lesson has gone virtually unheeded in the arena of criminal sentencing. The lack of attention to sentencing procedures has been one of the greatest failings of the last century's sentencing reform movement (3) and is the cause of much of the current upheaval in federal sentencing. Any revisions to the federal sentencing scheme should attend to the procedural and evidentiary law of sentencing as painstakingly as prior reform efforts did to the substantive law of sentencing. Most notably, the inattention--whether by design or neglect--to basic procedural safeguards threatens one of our most fundamental components of due process: the adversarial system of justice.

There are countless reasons why we ought to care about procedural rules that help regulate the adversarial system. Most obviously, the standardization of the sentencing process through procedural and evidentiary rules will influence the reliability of sentencing results. This effect is not to be underestimated. The absence of procedural fairness has tremendous societal costs. The public' s faith in the criminal justice system rests upon the belief that the victor in an adversarial process has triumphed over a capable opponent who had a fair opportunity to soundly test her adversary's case.

But there is another benefit of procedural consistency and fairness that is specific to the federal sentencing enterprise. Insisting on fair procedural rules is a crucial means of achieving one of the principal goals of the Sentencing Reform Act: the elimination of unwarranted disparity in sentencing. The absence of procedural safeguards at sentencing has led to an underexamined form of disparity. Evidentiary and procedural rules--such as burdens of proof, standards of proof, exclusion of evidence, hearsay rules, and the like--attempt to instill a certain equilibrium or parity between the parties in any adversarial system. Their elimination undermines the credibility of the adversarial process and creates a disparity based more on the inequitable positions of the parties than on the reliability or relevance of the evidence presented.

Parity does not provide an absolute or inherent measure of fairness. In fact, we tend to rely on notions of parity or comparative fairness precisely when we are unable to reach a consensus regarding substantive fairness. Nonetheless, parity, and the procedural safeguards that undergird it, provides a useful barometer of fairness. The past century of criminal justice reform has taught us that parity is indispensable as a "first principle" of criminal law so long as our judicial system is an adversarial one. Sentencing law has for too long been divorced from the rest of criminal procedure in this critical respect. Any attempt at lasting reform in sentencing law must seriously consider the parity question in a conscientious and realistic manner.

But what do we mean by parity in the context of criminal procedure? Two kinds of parity are essential to sentencing reform (and most criminal justice reform). First, there must be parity between defendants. The old Aristotelian principle still holds true: like cases are to be treated alike, and unlike cases unalike. The determination of which factors in a case are worthy of differentiated treatment has been traditionally left to the legislature. In the last several decades of federal sentencing, the legislature's primary goal has been to avoid unwarranted disparity. (4) The second type of parity with which criminal procedure has been concerned is that between a very powerful government and the individual accused. The outcome of a criminal case should never be the result of a power differential between the parties, but rather should be based on proof of the allegations. Structural disparity is inevitable because only the government can initiate charges and start the process that can lead to the deprivation of life and liberty. But procedural parity--fairness in the rules that govern how or to what extent the government may cause this deprivation--is both essential and achievable.

The issue of parity has been a critical component of every aspect of criminal justice reform with the notable exception of sentencing reform. The goal of parity between the parties is fundamental to the adversarial system. Some of the most notable cases in our history are grounded in the recognition that parity is a fundamental measure of justice. Gideon v. Wainwright (5) held that the right to counsel is constitutionally guaranteed, in part because of the absence of parity between lay defendants and professional prosecutors. Miranda v. Arizona (6) addressed the issue of informational parity between the accused and the government by requiring police officers to warn citizens of certain rights prior to custodial interrogation. Griffin v. Illinois (7) held that indigent defendants are entitled to free court transcripts for purposes of appealing their cases in an effort to establish a rough parity between rich and poor defendants.

One weakness of the Federal Sentencing Guidelines has been its attempt to strictly regulate the first form of parity (between defendants) through substantive sentencing law without addressing the other form of parity (between parties) through procedural sentencing law. It is not surprising that this strategy has failed because, as I argue in this Article, these two types of parity work in tandem. The only way for a fact-finder (whether judge or jury) to know whether disparity or uniformity is warranted between specific cases is through the advocacy of the prosecutor and the defense attorney. If the relative procedural and evidentiary burdens and benefits bestowed on the different adversaries are grossly disproportionate, the adjudicator cannot adequately make the determinations required to avoid unjustified disparity at sentencing. The constant calibration of a leveled playing field between prosecution and defense is a necessary part of any successful sentencing structure. In this Article, I examine the interconnectedness of the two types of parity and their importance for sentencing reform in a properly functioning adversarial system.

1. THE PROBLEM OF PROCEDURAL DISPARITY IN FEDERAL SENTENCING

   As a normative matter, a defendant's sentence should reflect a range of factors. Most societies have determined that a criminal sentence ought to be based on the need for deterrence, punishment, justice, rehabilitation, reintegration, and victim compensation, among other goals. Different societies have traditionally valued these principles in different doses and combinations, but when a sentencing scheme strays too far from these goals, most would agree that it has gone awry. For example, a sentence based on legally irrelevant factors such as race, poverty, or lineage, to name some obvious examples, would be widely and justifiably considered inappropriate.

   Sentences that are based on legally irrelevant factors are troublesome for two reasons. First, there is the obvious reason that such sentences represent an arbitrary use of government power. A government must have compelling reasons to justify the taking of life or liberty. If some of its reasons are unjustified, then the government's action is also unjustified. The second problem is the unwarranted disparity such sentences produce compared to the sentences of similar defendants convicted for similar crimes but based solely on legitimate factors. A judge who bestows an additional sentencing discount or penalty on all defendants for an arbitrary reason will invariably have disparate sentences from those judges who base their punishments strictly on legitimate sentencing...