Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment

Article excerpt

INTRODUCTION
I. GETTING AROUND THE GUIDELINES
II. THE EXTENT OF EVASION
III. THE COSTS OF FACILITATING EVASION BY AGREEMENT
IV. SOME OPTIONS FOR IMPROVING JUDICIAL OVERSIGHT OF NEGOTIATED
    SENTENCES
CONCLUSION

INTRODUCTION

For over two hundred years our nation's legislatures have, for the most part, rejected mandatory penalties in favor of judicial discretion to sentence within a designated range. This policy has endured, despite shifts in punishment philosophy, for two reasons. First, any offense definition is necessarily inexact, sweeping in less culpable offenders who just barely violate its terms along with hardened criminals who cause far more harm than its drafters envisioned. A sentencing range allows the judge to adjust the sentence to address these individual cases. Second, as negotiation increasingly dominates criminal justice, judicial discretion in sentencing has helped to iron out the very different punishments that like offenders might have otherwise received as a result of bargains--bargains sometimes based on considerations that the legislature has not endorsed as valid reasons to reduce or increase punishment. (1) The judge's final authority to select an appropriate sentence from within a range of punishment is thus an essential part of any sentencing policy that simultaneously values both efficiency through negotiated dispositions and consistent application of systemwide sentencing norms. (2)

In the Sentencing Reform Act of 1984, (3) Congress recognized that bargaining threatened to undermine its new sentencing regulations. It also recognized that judicial oversight was the most potent remedy for this threat. Continuing the pre-Guidelines practice of real-offense sentencing, the new Federal Sentencing Guidelines preserved for judges the authority to set final sentences using offense and offender facts not established as part of the offense of conviction. (4) But the ability of real-offense sentencing to counter the sentencing effects of negotiation has proved far from perfect. Both in bargaining over statutory ranges and in bargaining over sentences within statutory ranges, parties have easily escaped from the constraints of the Guidelines.

Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). (5) By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide by them. (6)

Other authors in this Issue address whether lawmakers should modify some of these statutory mechanisms that expand the government's unilateral power to select very different punishment ranges for not-so-different cases. (7) This Article will focus instead on the parties' ability to circumvent consistency by bargaining around the rules that structure sentences within statutory ranges. Without careful control by judges, sentencing bargaining carries risks for structured-sentencing systems that may outweigh gains in efficiency. After a discussion of weaknesses in the ability of judges to oversee the factual accuracy of sentencing decisions, this Article advances several options that would strengthen that supervisory role, promoting greater accuracy, transparency, and consistency in federal sentencing.

I. GETTING AROUND THE GUIDELINES

Parties have at least three mechanisms for evading rules intended to structure the judge's sentencing decision within a given statutory range, regardless of whether those rules are the complex Guidelines presently in place, or are more simplified rules, as several commentators have proposed. …