Guided to Injustice? the Effect of the Sentencing Guidelines on Indigent Defendants and Public Defense
Hall, Joseph S., American Criminal Law Review
"The effect of all system is apt to be petrification of the subject systematized."(1)
A popular prison joke among inmates is that no one really committed the crime they are serving time for; they are there because their lawyers blundered.(2) And while this is understood as a shared laugh among prisoners, this Note illustrates how this situation is increasingly true for a subsection of defendants under the Federal Sentencing Guidelines (the "Guidelines")--namely those defendants who were represented by public defenders.
With the transition to the Guidelines in 1987, the defense lawyer's role in sentencing fundamentally changed.(3) A defendant's sentence is now determined, in large part, by the prosecutor's decisions and the public defender's adeptness in manipulating the Guidelines, as compared with the previous system in which the judge was almost solely responsible for the sentence.(4) Constraints upon defense resources as well as the prosecutor's zeal in attempting to secure a plea, or a high sentence in the absence of a plea, now effectively determine the length of a defendant's sentence.
With this change, those represented by public defenders are especially disadvantaged. Since the public defender may not have the time, resources, or facility with the Guidelines to advocate effectively for a shorter sentence, she must ration her time between trial preparation and efforts aimed at minimizing a sentence. Under the Guidelines, these efforts at sentencing frequently do not overlap with the issues the defender must present at trial, hence requiring additional research and investigation on the part of defense counsel. Moreover, institutional and political constraints on the public defender often push indigent defendants to plead guilty to avoid receiving a longer sentence at trial, even if they have good defenses or are innocent.
Meanwhile, as the skill required for effective advocacy has increased drastically in the post-Guideline era, the standard for challenging the effectiveness of counsel has remained the same, and budgets for public defenders have fallen amidst political furor.(5) The result is that indigent defendants are even more disadvantaged under a Guidelines regime, and the rational prosecutor will often attempt to exploit this disadvantage to dispose of cases.
While the quality of a defendant's defense contributed to her sentence under the previous regime as well,(6) this sort of sentence disparity was one of the evils that the Guidelines aimed to correct.(7) Instead of correcting this state of affairs, however, the Guidelines have exacerbated this situation by making a defendant's sentence even more dependent on the quality and nature of a defendant's representation. The Guidelines have also spurned a realignment of incentives that often prompts prosecutors to exploit disproportionately those who are represented by public defenders.(8) In addition to any concerns one should have about the fairness, equity, and justice of this situation, there is also good reason to believe that this inequality might lead to an increase in prison violence, a decrease in the aggregate level of law-abiding behavior among the general public, and a decline in the general efficacy of criminal sanctions as a whole.
This Note explores the Guidelines from the frequently overlooked perspective of the defendant and the public defender designated to represent her. Ironically, as this Note demonstrates, one of the primary goals of the Guidelines, reduction of unwarranted disparity,(9) is actually aggravated by the Guidelines. Since many of the factors upon which sentences under the Guidelines rest are driven by intense factual inquiries,(10) a particular defendant's hope for receiving a lighter sentence is often heavily dependent upon any number of factors outside the Guidelines. Factors such as whether or not the defendant can afford a skilled attorney capable of making innovative legal arguments or performing detailed factual investigations have a profound influence on a defendant's sentence. …