Sentencing: Allocation of Authority

There are a number of decision-makers who, in some cases, and in some jurisdictions, hold and exercise discretion to influence punishment outcomes, but who are not represented on the discretion diagrams featured above. A number of these decision-makers will be noted in this section.

First, victims of offenses in the 1980s and 1990s have increasingly become a part of the formal criminal process, including sentencing proceedings. Victims commonly submit "victim impact statements" to sentencing courts, in writing, in the form of oral statements at sentencing hearings, or both. Earlier in the process, victims in many states now consult with prosecutors concerning the charges that will be filed in their cases, and whether or not they approve of plea agreements contemplated by prosecutors. Earlier Figure 8 still, victims might be said to exercise a form of discretion when they decide in the first instance whether or not to report a crime committed against them. A crime that is not reported stands small chance of being punished. We have little empirical knowledge concerning the actual effect upon sentences that has resulted from the growing input from crime victims, but the trend across the country remains one of an increasingly important role for victims.

Second, executive clemency was once an extremely important form of sentencing discretion in the United States—it was a major feature of criminal justice before parole was invented in the late nineteenth century. The president and the governors of most states hold power to pardon offenders, before or after conviction, or to commute sentences (that is, to reduce the severity of sentences). In some jurisdictions this executive power is exercised in conjunction with an agency such as a board of pardons, and in other jurisdictions it remains within the sole discretion of the chief executive. The clemency power continues to exist in all U.S. criminal justice systems, but was probably used less often in the latter twentieth century than in previous times. In the 1980s and 1990s, many elected officials became wary of taking action that could identify them as "soft on crime." Executive clemency has hardly disappeared from the legal horizon, but it is seldom a factor in run-of-the-mill criminal prosecutions.

Third, at least in a handful of states, voters can now exert direct impact upon state sentencing laws through the initiative process. Three-strikes laws, for example, appeared on the ballots of a number of states in the 1990s. The voters in Washington State passed a number of mandatory penalties, including a three-strikes law, that have had real impact on prison growth in the state. Such adjustments in the punishment structure can affect other decision-makers at the systemic level. For instance, if mandatory penalties created through the initiative process result in a significant drain upon prison bed spaces, less flexibility remains in the hands of the legislature and sentencing commission to determine priorities in incarceration policy.

Fourth, a small number of states employ jury sentencing in noncapital cases that go to jury trial, and a majority of jurisdictions with the death penalty rely upon juries to make capital sentencing decisions. In such instances, juries possess the kind of sentencing discretion that is familiarly reposed in trial judges. Where such practices thrive, it is often because jurors are considered to be better representatives of community sentiment than a single member of the judiciary, and thus better positioned to render just punishments. Jury sentencing is often criticized, however, on the ground that jurors lack experience across the full range of criminal prosecutions, and are handicapped in their abilities to compare one case with another for purposes of rendering proportional sanctions. Jury sentencing tends to be politically popular where it exists, but there is no trend to introduce jury sentencing, particularly in noncapital cases, to jurisdictions that have not had such a tradition.

Fifth, in some types of cases, police officers or other law enforcement officers are said to have a new kind of sentencing discretion. Of course, the police have always had considerable discretion over whom to arrest, and a decision not to arrest usually forecloses any possibility of later punishment for the crime at hand. In recent years, however, a number of cases have arisen under sentencing guidelines and mandatory penalties in which the law enforcement decision concerning when to make an arrest has acquired new importance. If, for example, a mandatory penalty requires that a drug offender buy or sell a specified quantity of drugs, some defendants have alleged that the police have prolonged their undercover operations until charges entailing the triggering quantity of drugs can be brought. In the case of undercover sales, it is possible for the police to engineer a number of transactions, waiting for the drug amount to exceed the statutory threshold. This behavior has sometimes been called "sentencing entrapment." To date, there is no legal remedy for a defendant who claims to have been the target of such police behavior, nor is there consensus that there is anything wrong with such law enforcement activity, despite its deliberate impact upon punishment consequences.

Finally, the offender himself might be seen as one of the most important discretionary actors in the criminal process. Barring a miscarriage of justice, the offender's provable criminal conduct places boundaries on the potential punishment in every case, simultaneously creating and restricting the discretions of all downstream decision-makers. It is sometimes said that the prosecutor has the power to select punishment in a case involving a mandatory minimum penalty, or in a restrictive guidelines system, through the decision of what charge to file. There is much truth to the claim that prosecutors have sizable discretion not to charge (or to drop charges in return for a guilty plea or other cooperation), thereby lowering the punishment range available to the court and later system actors. But prosecutors have much less power to increase the punishment range; they cannot "select" a more severe punishment by filing more serious or additional charges unless there is a realistic chance of proving those charges beyond a reasonable doubt (or in federal system, at least proving such charges by a preponderance of evidence, as "relevant conduct" for sentencing purposes). Thus the prosecutor's power derives directly from the offender's underlying guilt.