When discretion leads to distortion: recognizing pre-arrest sentence-manipulation claims under the Federal Sentencing Guidelines.

• Author: Fisher, Jeffrey L.

"[C]omplexities . . . are not to be escaped by simple, rigid rules which, by

avoiding some abuses, generate others."

-- Justice Felix Frankfuter

INTRODUCTION

The government's main purpose and policy in the "war on drugs" is to get drug dealers off the streets.(2) Because of the furtive nature of the drug trade, undercover operations are an essential tool in performing this task. Courts therefore allow the government the enormous discretionary power necessary to run "stings." For example, government agents have almost exclusive control over who gets targeted for stings, the amount of drugs(3) involved in the transaction, and how long the sting lasts. This level of authority carries with it an inherent risk of abuse(4) Variations in these factors can have a profound impact on the extent of a defendant's criminal conduct before a sentencing court -- and therefore potentially on the length of a defendant's sentence.(5) Until 1987, abuses of these investigative powers or, as is more often the case, inequalities in criminal conduct arising from the legitimate use of such powers, could be compensated for by the sentencing court's use of discretion.(6) By looking at the circumstances surrounding the defendant's conduct, the court could ensure that the defendant's sentence matched his culpability.

However, under the Federal Sentencing Guidelines (the "Guidelines") such judicial flexibility no longer exists. The Guidelines, drafted amid growing criticism of the inequities of discretionary sentencing, were designed to restrict judicial discretion and thereby reduce disparity in sentencing.(7) Yet many judges and commentators contend that certain sections of the Guidelines have failed to achieve this goal.(8) As one commentator put it: "The sentencing reform movement has not restricted sentencing discretion so much as it has transferred discretion from judges to prosecutors.(9)

The identical transfer of discretion has also taken place from judges to federal agents and investigators.(10) As investigators become increasingly knowledgeable about the inflexible Guidelines, they are utilizing their discretion to manipulate the sentences of their subjects in ways that they never could have before.(11) But the harsh prison terms that result from such investigative strategies are causing several courts to rethink their theories governing the relationship between stings and aggregate sentencing.(12)

Compare the following two drug cases that resulted in virtually identical sentences. Eric Payne was a habitual drug pusher who sold crack out of his apartment, bringing in as much as $1000 to $2000 a day.(13) After a tape recorder malfunctioned on one purchase, government agents successfully negotiated and purchased two ounces of crack from Payne.(14) Payne was arrested, prosecuted, and convicted on the basis of the two ounces--the equivalent of 56.7 grams(15) -- of crack.(16) Sales of over fifty grams of crack carry a mandatory ten--year prison sentence,(17) and this proved to constitute the lion's share of Payne's seventeen-and-one-half year sentence.(18)

Angela Diane Reese was also a habitual drug pusher, but she was comparatively small--time. Reese, a "street--corner peddler"--also a single mother and first--time offender -- sold crack to an undercover agent on seven different occasions. Perhaps not coincidentally, the sev enth sale brought the aggregate amount of drugs to fifty--nine grams.(19) This placed Reese over the "magic number"--the fifty--gram threshold that carries the mandatory ten--year prison sentence.(20) compared to only a five--year minimum sentence for 5 to 49.9 grams.(21) Reese was sentenced based on all seven sales to fourteen years in prison, after which she remarked in dismay, "There are people that murder, rape and kill who don't get that much time.(22)

The truth is that, short of finding extreme governmental misconduct, most courts feel that they have no choice but to treat the fifty grams that Payne dealt in one sale exactly like the fifty grams that Reese accumulated in seven sales.(23) Under section 2Dl.1 of the Guidelines, sentences for drug offenses are determined by aggregating the quantity of drugs involved in the relevant criminal transaction(s).(24) Further, none of the Guidelines' enumerated departure provisions addresses the possibility of excessive sentences due to protracted sting operations -- indeed, nothing in the Guidelines' legislative history or numerous policy statements mentions the issue.(25) Thus, most courts end up sentencing all drug defendants according to one factor, and one factor only: quantity -- irrespective of the number of transactions that it took to reach certain thresholds.

Yet many small--time defendants like Reese claim that this scheme, in the words of one commentator, "introduce[s] disparity in a system intended to eliminate disparity.(26) These defendants point out that just punishment flows from more than mere quantity or harm; culpability -- which consists of factors like the number and frequency of the sales at issue and their role in the offense -- also matters, and can be overrepresented easily under these rules. Therefore, these defendants argue, rigidly applying section 2D1.1 can lead to a serious and unintended result: Government investigators have the ability -- and arguably the incentive -- to manipulate defendants' sentences by exercising nearly complete control over the quantity of drugs involved in the crimes for which they are charged. This practice has been termed "sentence manipulation.(27) Yet while most courts concede the potential for governmental abuse and disparate sentences under these circumstances, they remain hesitant to scrutinize governmental investigative conduct when it only affects the length of a defendant's sentence.(28)

This Note rejects this stance. It argues that sentence manipulation should be a legally viable partial defense -- a defense that does not warrant complete exoneration, but does warrant a reduced sentence when the government's investigative techniques place a quantity of drugs before the court(29) that overrepresents the defendant's culpability, or individual blameworthiness. Part I describes the policies and objectives that underlie the Guidelines, but then demonstrates how the rigid application of quantity--based sentencing provisions can lead to sentence manipulation that thwarts these goals, particularly the goal of sentencing according to culpability. Part II describes how courts have responded to sentence manipulation claims. It contends that the majority of the courts' position -- examining police practices under the due process "outrageous government conduct" test--is misplaced and inadequate, while the minority's position of departing downward for lessthan--constitutional violations is more appropriate and promising. Part III proposes alternative legal formulas for recognizing sentence manipulation as a viable and effective partial defense: allowing it as a special circumstance that warrants a downward departure under the Guidelines or amending the Guidelines themselves to limit the number of transactions that may constitute relevant conduct.

1. QUANTITY--BASED SENTENCING AND ITS CONSEQUENCES

   This Part describes the impulses behind the adoption of a rigid quantity-based sentencing scheme and argues that this scheme is easily thwarted because it gives government investigators the ability to manipulate defendants' sentences by continuing to conduct transactions long after the extent of the defendants' culpability has been determined. Section I.A recounts the reasons for creating the Guidelines and elaborates on the policies that they attempt to achieve. Section I.B shows how the drug sentencing provisions of the Guidelines embody these objectives, but asserts that rigidly applying these provisions places too much power in the hands of investigators, particularly undercover agents, and, there fore, can lead to sentence manipulation. Section I.C rejects the principal argument against reducing sentences in cases of sentence manipulation -- that offenders should always be punished according to the total amount of harm that they cause, regardless of police tactics - and contends that sentence manipulation is a serious problem that should be recognized by courts.

   1. The General Objectives of the Guidelines

      The Federal Sentencing Guidelines were created amid growing dissatisfaction over the inconsistency and ineffectiveness of criminal punishment. Many offenders were serving only a small portion of their lengthy sentences(30) while rates of recidivism and violent crime continued to rise.(31) Further, judges were not required to explain the sentences that they mandated -- which often varied greatly from their colleagues' sentences under similar circumstances -- and appellate courts had virtually no authority to rectify the differences.(32) The system was seen as so unfair and ineffective that Senator Edward Kennedy termed it a "national disgrace."(33) Consequently, the Guidelines sought to create new, more consistent procedures for the American sentencing system and, in doing so, shifted the focus of its overall penal philosophy from rehabilitation to desert.(34)

      1. The Goals of the Guideline System

         In 1984, Congress passed the Sentencing Reform Act,(35) which created the United States Sentencing Commission. The Act, and the Guidelines that the Commission drafted pursuant to its mandates, had three main objectives. First, they sought to reduce "disparity in sentences imposed for similar criminal offenses committed by similar offenders."(36) This was perhaps the single most important objective behind the Guidelines.(37) Second, "Congress sought proportionality in sentencing through a system that impose[d] appropriately different sentences for criminal conduct of differing severity."(38) Third, Congress sought to achieve "honesty in sentencing"-that is, to create a system in which all offenders served the vast...