Just Deserts and Lenient Prosecutors: The Flawed Case for Real-Offense Sentencing
Yellen, David, Northwestern University Law Review
Professor Julie O'Sullivan has undertaken a formidable assignment: defending the "much maligned `cornerstone'"1 of the Federal Sentencing Guidelines, the United States Sentencing Commission's decision to adopt a modified "real-offense" sentencing system. Professor O'Sullivan does not shy away from a good fight. She vigorously defends the most controversial aspect of the Guidelines: the requirement that judges in many cases base sentences on uncharged alleged criminal conduct, charges that have been dropped as part of a plea agreement, or charges of which the defendant has actually been acquitted. Indeed, her main criticism of the Guidelines is that the Sentencing Commission has not gone far enough in embracing the mandatory real-offense sentencing.
As one of those who has "maligned" the Guidelines' mandate that judges consider unproven criminal conduct,2 I nonetheless find much to admire in Professor O'Sullivan's article. Upon reflection, it is rather shocking that it has not been until the Guidelines' tenth anniversary that someone has attempted to offer such a well-developed defense. Then-Commissioner Breyer included a thoughtful, but brief, exegesis on this subject in an early article on the Guidelines,3 but the Sentencing Commission itself has offered only the slimmest rationale for this fundamental decision.4 Professor O'Sullivan fills this gap with a thorough and perceptive analysis. She makes probably the best possible case for including what I have called alleged-related offenses5 in the sentencing calculus.
In fact, there are at least two important points on which Professor O'Sullivan and I are in agreement. First, we agree that the potential justification for requiring judges to consider alleged criminal conduct for which the defendant has not been convicted is that it may negate undercharging by prosecutors.6 In a "conviction-offense"7 system, a prosecutor's selection of charges greatly influences the sentence. By bringing multiple counts, where one might be appropriate, the prosecutor can ensure a harsh sentence. The prosecutor can also produce a lenient sentence by filing charges that understate the seriousness of a defendant's conduct. The Guidelines deal with the first problem-- overcharging--through the grouping rules of Chapter 3 (8) Alleged-related offense sentencing attempts to address the second problem, undercharging. Second, Professor O'Sullivan and I agree that the Sentencing Commission has failed adequately to explain why it requires allegedrelated offense sentencing for some crimes, such as narcotics crimes or fraud, but not others, such as bank robberies. The Commission attempts to explain this policy by referring to the fact that the Guidelines determine sentences for the former category of offenses based largely on the amount or quantity involved in the offense, but this explanation is unrevealing.9 If there is any reason why a defendant should be sentenced as if convicted of an uncharged drug crime but not of an uncharged bank robbery, the Commission has failed to articulate it.10 Professor O'Sullivan and I are in sharp disagreement, however, on the implications of these points. She feels that restraining prosecutorial leniency is appropriate, even essential, to the goals of sentencing reform.ll She also concludes that the Commission's irrational line should be shifted so that all forms of criminal conduct receive the Guidelines' real-offense treatment.12 I disagree with both of these conclusions and continue to adhere to my belief that allegedrelated offense sentencing under the Guidelines is a moral and practical disaster. In the remainder of this Essay, 1 will respond to some of Professor O'Sullivan's main points and explain where I believe her analysis comes up short. Some of our differences reflect different values and ordering of priorities. Other differences, though, flow from Professor O'Sullivan's mode of analysis and argument. To my mind, she never fully articulates why the purposes of punishment require either something like the Sentencing Commission's version of modified real-offense sentencing, or the more extreme version she apparently favors. …