Prosecutorial Discretion and Federal Sentencing Reform
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Description
The proposed Federal Criminal Code passed by the Senate in the last Congress—S. 1437—contains provisions that would radically alter the structure of the federal sentencing process. The bill would create a United States Sentencing Commission that would promulgate guidelines to be used by trial judges in determining sentences. The Sentencing Commission would also promulgate guidelines for the United States Parole Commission to use in determining whether an eligible prisoner should be released on parole. The bill is intended to narrow the discretion heretofore exercised by judges and the Parole Commission, in order to “avoid . . . unwarranted sentence disparities.” It is by no means clear, however, that narrowing the discretion of judges and the Parole Commission would reduce disparities or control the total amount of discretion exercised in the criminal justice system. The reforms proposed in S. 1437 could actually aggravate the problems of discretion and sentencing disparities, because the enormous discretion exercised by prosecutors would not be brought under direct control. If judicial discretion were greatly reduced, the prosecutor's decisions regarding charge and plea agreements would be much more important in determining ultimate punishment. Although the possibility for abuse and arbitrary results at the judicial and parole stages would be greatly reduced, so would the possibility that judges or parole officials could counteract extreme decisions at the charging stage. As a result, it is possible (and some observers think likely) that the proposed system would generate even greater disparities than those resulting from our present system of three separate—but to some extent, offsetting—levels of discretion. Moreover, even if overall disparity did not increase, the quality of the discretion exercised might be adversely affected because, in effect, discretion would be transferred from federal district judges to assistant United States attorneys. No matter how conscientious they are, assistant United States attorneys are almost uniformly far younger and less experienced than district judges, and their decisions are typically far less visible. The present study was designed to explore the extent of these dangers and to develop proposals for minimizing them. The report identifies three principal approaches that the Sentencing Commission could take in promulgating guidelines under S. 1437. Guidelines restricting judicial discretion (with or without sentencing provisions designed to minimize the importance of factors within prosecutorial control) seem most faithful to the spirit of S. 1437. But paradoxically, they seem likely to generate sentencing disparities more pronounced and less justified than those arising under current law. Guidelines preserving judicial discretion are technically permitted by S. 1437, though they seem essentially contrary to its spirit. Such guidelines could reduce the incidence of extreme disparities and effect modest, though by no means revolutionary, improvements in the sentencing system. Approaches controlling charging and sentencinq discretion can be effectively implemented only with amendments to S. 1437, but these approaches offer the best hope for achieving a substantial reduction in sentencing disparities, as well as better assurance of sound decisions in individual cases. The report evaluates in particular detail two methods for controlling both charging and sentencing discretion. The first, a policy basing the sentence upon the “real” offense rather than the formal offense of conviction, appears unwise and ultimately unworkable. The second method, involving formal guidelines to regulate charge-reduction decisions and explicit concessions for defendants pleading guilty, seems both sound in principle and workable in practice. The final chapter of this report describes a guideline model reflecting the latter method. Charge-reduction guidelines of the kind proposed would provide a basis for effective control of discretion and substantial reduction of sentencing disparity. Such guidelines also appear capable of significantly improving the fairness of the plea negotiation process and the general quality of sentencing decisions.
Publication Date
1979
Recommended Citation
Schulhofer, Stephen J., "Prosecutorial Discretion and Federal Sentencing Reform" (1979). Faculty Books & Edited Works. 633.
https://gretchen.law.nyu.edu/fac-books-edited-works/633
