Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same time, average sentence length appears to be falling slowly as judicial tendency to use the authority granted in the United States Sentencing Guidelines (the "Guidelines") to mitigate sentences through downward departures appears to be increasing.
This Article begins with the following two-part question: Why are (1) an apparent increase in judicial sentence mitigation through downward departure and (2) declining average sentence length two legacies of the 1980s' shift to longer prison sentences and increased prosecutorial control of sentence length? Although some might argue these legacies result from judicial resistance to loss of authority or general recognition among judges and prosecutors that federal sentences have become too long, this Article argues that a closer look reveals a much more complex and disturbing picture. Specifically, this Article will demonstrate the presence of two different federal criminal law systems operating in tandem.
The first system is that of narcotics prosecution wherein prosecutorial power often is unchecked and sentences often are unpredictable, but generally are quite harsh. Narcotics sentences have been decreasing steadily for almost ten years--a troubling instability--and there are wide disparities in sentences among similarly-situated defendants. Too many defendants receive sentences that are out of proportion to the wrongfulness of their conduct and too few will accept the risks that come with trying to enforce their rights in the face of often overwhelming prosecutorial power.
The second system involves the bulk of non-narcotics federal prosecution. Although there are many difficult questions presented by current prosecutions in fraud, robbery and other federal non-narcotics cases, the sentences in these areas are far more stable and predictable. Although harsh, problems of excessive severity are not as pervasive among sentences in the non-narcotics area, as there are many fewer mandatory minimum cases and judges are a more effective counterweight to instances of prosecutorial overreaching. Federal non-narcotics sentencing may not be the best of all possible systems of criminal sanctions, but it has proved reasonably stable and predictable over time. This Article will argue that much of the stability in non-narcotics sentences is the result of a defensible balance of power among prosecutors, judges and defense lawyers.
Meanwhile, the vast increase in prosecutorial power to control narcotics sentences is at the core of the problems with federal narcotics sentencing. The profusion of new narcotics and gun proscriptions, almost all of which carry mandatory minimum prison sentences, transformed the traditional prosecutorial power to charge into the contemporary prosecutorial power to determine the length of the sentence the defendant will serve. Although the Guidelines shifted sentencing power from judges to prosecutors across the whole range of federal crimes, this Article argues that mandatory minimum statutes have made this shift in power so extreme in narcotics cases that it has damaged the adversary system and wrought real injustice among those sentenced for narcotics crimes.
This Article has two descriptive and four analytic sections. Part I describes the changes that brought us from a system of almost unfettered judicial sentencing discretion to a system in which federal judges have very limited power to control the sentence in a particular case. …