Sentencing: Allocation of Authority

The current federal guidelines system, in effect since 1987, attempts to concentrate sentencing discretion at the systemic level and constrain such discretion at the case-specific level. In both respects, the federal system differs sharply from most guideline structures that have been adopted at the state level.

Although there is a great deal of variation across the country in the operation of the federal sentencing laws, Figure 5 attempts to capture a number of general observations that have been made about the system. First, at the systemic level, both Congress and the U.S. Sentencing Commission are pictured in Figure 5 as highly efficacious discretionary players. Through the adoption of many mandatory penalties, and through close oversight of the commission, Congress has assumed a major role in the determination of sentencing outcomes. The U.S. Sentencing Commission has also exerted great authority over sentences at the case-specific level through the creation of highly detailed guidelines and provisions that give federal district court judges only narrow authority to "depart" from penalties prescribed by the guidelines.

At the case-specific level, the most obvious discretionary effects of the new federal system Figure 5 are at the back end of the decision-making chronology. The release authority of the parole board has been abrogated entirely (indicated by an "X" in Figure 5), and the good-time credits that may be granted by federal corrections officials have been cut back to a maximum of 15 percent of the pronounced prison term (thus only a small shape for "corrections officials" in Figure 5). At the case-specific level, most sentencing authority has been removed from the back end of the system and is clustered among the actors who participate in the litigation process.

Among litigation players, the parties have probably assumed the lion's share of sentencing discretion in the federal system. Under either mandatory penalties or the tightly restrictive federal guidelines, the charge(s) of conviction can have forceful if not determinative impact upon what the punishment in a given case will be. Thus, the charging decisions of prosecutors, plus the plea agreements consummated by both parties, will often deliver cases to the judiciary with very little room to move punishments up or down from that prescribed by statute or guideline.

As between the two parties in federal litigation, it has generally been said that the prosecutor holds considerably greater power over sentencing outcomes than the defense attorney. While it is true that roughly 90 percent of federal cases are resolved through a guilty plea—and both sides must agree to such resolutions—prosecutors are perceived as enjoying a much stronger bargaining position than defense counsel.

The heightened authority of federal prosecutors might be ascribed to three sources. First, given the large number of mandatory penalties in federal law, the prosecutor's charging authority can determine by itself whether a heavy mandatory punishment will be at issue in a given case. Given the prosecutor's sole discretion in such charging decisions, the government may also use the threat of bringing such a charge, or the promise to dismiss such a charge, as bargaining leverage in plea negotiations.

Second, it is widely acknowledged that the severity of penalties in the federal system has increased substantially since before guidelines were enacted in 1987, in part because the guidelines themselves are more punitive than the preguidelines sentencing practices of federal judges, and in part because of the proliferation of mandatory penalties. As a result, many federal defendants who go to trial today face heavier sentences following a conviction than would have been the case before 1987. This unappetizing prospect can compel defendants to accept plea bargains that are less favorable than those to which they would have assented before the guidelines. This is clearly a net gain to the prosecution—although it is also a direct outgrowth of the sizable sentencing discretions exercised by Congress and the sentencing commission. If those systemic decision-makers had not decided that heavier sanctions were wanted as a matter of public policy, the bargaining position of federal prosecutors would not have eclipsed that of defense lawyers to the extent we have seen.

Third, prosecutors in the federal system have gained a unique boost to their sentencing discretion under the "relevant conduct" provision of the federal guidelines (United States Sentencing Guidelines, § lB1.3). The provision requires that sentences be increased at the sentencing hearing when the government proves, by a preponderance of the evidence, that the defendant committed certain offenses in addition to those of which the defendant was convicted. Thus, for offenses within the scope of the relevant conduct provision, a federal prosecutor has two opportunities to secure punishment: The prosecutor may seek a formal conviction by trial or guilty plea, or the prosecutor may wait to prove the offense at the sentencing hearing, under a reduced standard of proof, and where the defendant may not claim such rights as trial by jury, the exclusionary rule, double jeopardy, or the protections of the federal rules of evidence. No state guideline system has yet created an analogue to the relevant conduct provision, so it may be viewed as a source of prosecutorial sentencing authority that is entirely unique to the federal guidelines.

At least once in a while, in some but not all federal districts, the relevant conduct provision has also worked as a source of sentencing discretion enjoyed by probation officers. Under federal law, probation officers are required to bring evidence of all offenses included within the provision to the attention of the sentencing court—whether or not the prosecutor has chosen to do so. In theory, this requirement was intended to cut back on prosecutorial discretion by ensuring uniform sentencing for all relevant conduct even when the United States attorney would prefer to procure a plea bargain by agreeing to drop some or all relevant conduct allegations. In practice, however, federal probation officers do not routinely "upset the applecart" of negotiated guilty pleas by exposing facts at sentencing that the parties had agreed to keep out. But anecdotal accounts tell us that this has happened in some federal cases, perhaps depending on the individual probation officer's talents and predilections, and perhaps occurring in some districts more than others. Even though this form of probation officer sentencing discretion does not appear to be a stable feature of guideline sentencing in the federal system, it does suggest that the probation officer in Figure 5 should be depicted with more than minimal power to influence sentences.

Last, but by no means least important in Figure 5, are judicial actors. Here, the most remarkable feature of the federal system is how little sentencing discretion is left in the hands of district court judges. Under mandatory penalties, as we have seen, trial judges often have no discretion at all. In addition, district court judges are permitted small latitude to "depart" from the narrow sentencing ranges calculated under the federal guidelines. When district courts have chosen to deviate from the guidelines, the federal appellate courts have been vigilant in upholding the literal terms of the guidelines. Indeed, one recent study found that the chances of a trial court sentence being reversed on appeal in the federal system were ten times weaker than under the guidelines in Minnesota, and nearly fifty times greater than in Pennsylvania's guidelines system. Thus, federal district court judges are often heard to complain that their function has been reduced to "sentencing by computer."

In contrast to the shrunken sentencing discretion of district courts, the federal appeals bench has assumed a vigorous role in the new system. It is important to emphasize, however, that the discretion exercised by the U.S. Courts of Appeals has not been in the direction of creating new judge-made principles for the punishment of offenders. Instead, the powers of the appellate bench have been devoted heavily toward the strict enforcement of the commission's guidelines. This behavior on the part of the appeals courts is in fact a linchpin of the entire discretionary structure of federal sentencing. If the courts of appeals were more relaxed in their review of district court sentences, then the sentencing discretion of district court judges would swell immediately. As a consequence, the systemic powers of Congress and the U.S. Sentencing Commission would deflate (because their prescriptions were less enforceable). And, very likely, if the guidelines were to lose some of their constraining power over trial courts, the importance of the parties' charging and plea bargaining discretions would drop off as well. The appellate courts in the federal system are like a finger in the dike, preventing the trial courts from exercising meaningful discretion over sentencing outcomes, while at the same time allowing great quantities of discretion to pool among actors earlier in the decision-making chronology.

The discretionary relationships surveyed here are complex to grasp, despite the visual aid of Figure 5. Most of the allocations of discretion in the federal system make sense, however, in light of the policies the system was designed to achieve. As recounted by Kate Stith and José A. Cabranes, one major goal of federal sentencing reform was to stiffen punishments for a host of crimes, and to take away the discretion of district court judges to mete out penalties that Congress and the U.S. Sentencing Commission perceived were too lenient. Certainly, to date, these objectives have largely been achieved. Strict enforcement of the federal guidelines was also supposed to promote uniformity in sentencing and, once again, the planned reduction of trial court discretion is consistent with this purpose. However, just as we saw earlier in the case of mandatory penalties (see Figure 4), the federal guidelines system has not solved the riddle of prosecutorial and plea bargaining discretion at the case-specific level.