Regulating local variations in Federal Sentencing.

• Author: Bibas, Stephanos

INTRODUCTION I. TYPES, COSTS, AND SOURCES OF LOCAL VARIATION A. Justified and Unjustified Types of Local Variation B. Sources of Local Variation II. A CASE STUDY OF UNJUSTIFIED VARIATION: FAST-TRACK PROGRAMS III. A MIXED BAG: SUBSTANTIAL ASSISTANCE DEPARTURES A. How Substantial Assistance Works in Practice B. How To Achieve the Right Blend of Uniformity CONCLUSION INTRODUCTION

While federalism justifies variations among state laws, federal criminal law is supposed to be a uniform national response to crimes of national import. On paper, a single set of federal criminal statutes and Federal Sentencing Guidelines applies uniformly throughout the United States. But in practice, federal criminal charges and sentences vary greatly from state to state and from district to district. For example, some districts regularly prosecute low-level drug offenders. Others set high drug-quantity thresholds for charging and refer less significant cases to state authorities. In some districts, defendants must go to great lengths to earn cooperation discounts at sentencing. In others, much less cooperation will suffice.

Some of these variations reflect legitimate local responses to local crime patterns, needs, knowledge, and concerns. Other variations reflect local hostility to national policy choices, methods, and values. The law must accord some weight to local needs, concerns, and limitations, while still ensuring horizontal equity and consistency with national policy. This problem exemplifies the enduring tensions between ex ante rules and ex post discretion, between equality and individualization, and between a synoptic bird's-eye perspective and localized knowledge.

Equal treatment of similar offenders in different places is one important value in sentencing, but not the only one. A range of variation is necessary, and indeed healthy, to adapt national policy to localities. While some types of variation are necessary and even desirable, others are not. Variation that is too great or too blatant comes at the steep price of inequality, unfairness, and reduced deterrence.

Part I of this Article considers how regional and local sentencing patterns vary. Part I.A differentiates justified from unjustified variations. Justified variations are tactical responses to particular localized crime patterns, knowledge, and concerns. Variations are unjustified, however, when they reflect local hostility to national policy choices; arbitrariness; racial, ethnic, or class bias; or perhaps local implementation strategies at odds with national strategy. Part I.B considers how judges, head and line prosecutors, defense counsel, probation officers, and juries introduce local variations into sentencing patterns.

Part II is a case study of an unjustified variation that has sprung from macro-level crime problems. Southwestern border districts use fast-track programs, offering massive charge and sentence discounts to dispose of thousands of immigration and drug crimes swiftly. Supporters praise fast-track programs as a traditional use of prosecutorial discretion to respond to unique local caseloads and to punish the worst offenders most harshly. But these programs introduce large and blatant inequalities, undercut national policy, cloak the need to reallocate enforcement priorities, and truncate procedural protections. In the PROTECT Act, Congress authorized fast-track policies but limited their sentencing departures, a troubling compromise that sanctioned inequality while regulating it. Congress should abolish or at least further restrict these programs.

Part III moves onto a case study of justified and unjustified variations that stem from micro-level local practices: sentencing discounts for cooperating with law enforcement authorities under Federal Sentencing Guidelines [section] 5K1.1. Part III.A explains how this provision works and how districts implement it in practice. Districts vary greatly in how many defendants receive so-called "5K1 letters," how large the defendants' discounts are, how much cooperation it takes to win a letter, and why prosecutors offer discounts. Part III.B then considers the right blend of uniformity and local variation in this area. While line prosecutors have the best insight into their own cases and needs, procedural oversight and substantive guidelines on the acceptable forms of cooperation and the appropriate levels of sentencing discounts can improve their decisions. In sum, national equality is a virtue, one that calls on us to minimize some but not all types of local variation. Prosecutorial discretion is a force for individualized justice, and inflexible rules can never take its place. Nevertheless, procedural and substantive regulation of charging, plea bargaining, and sentencing can check hostility to national policy while accommodating local problems and knowledge.

1. TYPES, COSTS, AND SOURCES OF LOCAL VARIATION

   1. Justified and Unjustified Types of Local Variation

      Justified local variations have principled rationales that are not at odds with national policies. First, local crime problems, caseloads, and knowledge vary and require varied responses. A local crime problem, such as a sudden rash of shootings, may require a swift and severe response, such as a crackdown on illegal gun trafficking. Usually there is no time to seek legislation or increased enforcement funding. Agents and prosecutors must use their enforcement discretion to respond ad hoc to crises, and judges may cooperate by issuing stiffer sentences. (1) Moreover, federal agents and prosecutors have local knowledge about how particular crimes are being committed. By targeting a particular money-laundering tactic, for example, agents may be able to bring down local drug rings that rely heavily on that tactic. Publicized targeting programs can also reassure the local populace that the crime du jour is under control, stemming crime waves and deterring copycat crimes. If the federal justice system responds to local enforcement needs, the result will be increased local respect and cooperation. If the system ignores pressing needs, federal law may lose local credibility and trust.

      Local variations that lack these justifications carry significant costs. Two identical defendants who violate the same federal law in the same way in different places deserve the same punishment. Imposing different punishments undercuts national uniformity and equality. Moreover, consistent enforcement sends clear, unequivocal messages to prospective criminals. Conversely, variations undercut deterrence and the law's expressive message. This risk is especially great because criminal defendants tend to be overoptimistic and assume that they will receive sentences toward the lenient end of the spectrum. (2) Variations also make the law seem arbitrary, undercutting its perceived fairness and legitimacy. And once one locale carves out an exception to federal law, others may follow suit.

      Even when a local variation carries little immediate cost, it may reflect and reinforce troubling social values. Local variations may stem from or create racial, ethnic, or class disparities, as inner-city minorities may suffer heavier penalties than suburban whites who commit identical crimes. Indeed, concern about racial and ethnic disparities was one driving force behind the sentencing reform movement that culminated in the Federal Sentencing Guidelines. (3)

      Local independence can also be troubling when it creates variation simply out of hostility to national policy rather than out of bias or prejudice. Policy and value variations are appropriate among states because federalism respects state sovereignty, but this conclusion does not justify variation within the national government. Our democratically elected representatives have decided to enact uniform national criminal laws to address national problems and enforce them with one voice through one agency--the U.S. Department of Justice. Locales that disagree cannot in effect secede from federal criminal law any more than they can secede from the Union. While some locales dislike the War on Drugs, for example, they should neither disregard federal law nor water down enforcement, but instead should agitate for change through Congress. Otherwise, these locales send equivocal messages to potential criminals, undercutting the deterrence and denunciation of crimes across the country.

      The argument for uniformity is strongest for uniquely national crimes, such as immigration violations, and for crimes that in practice have to be prosecuted nationally, such as interstate drug rings. Both kinds of crimes typically have repercussions that extend far beyond a single district and do not simply displace state law and state policy choices. (4)

      A more debatable class of variations occurs when a locale insists that it knows best how to implement federal values locally. A local U.S. Attorney's Office might claim, for example, that its high volume of cases requires a strategy of offering very lenient plea bargains. That office may achieve more deterrence if it plea bargains many cases swiftly for low sentences rather than holding out for average sentences in fewer cases. Because the argument for this low-price strategy rests not on local ends but on means, it is more justifiable than simple disagreement with national policy. However, this low-price approach is an implementation strategy, not a tactic, and strategy is a longer-term approach that is more amenable to national resolution. Moreover, because implementation strategies are visible, strategic disuniformity is likely to produce copycats in other districts and perceptions of inequity. A patchwork of varying implementation strategies also hides from Congress the longer-term issue of inadequate enforcement budgets and priorities, stifling national resolution of the underlying problem.

      In short, justified variation is grounded in tactical decisions about localized crime...