07 April 2004

Panel Discussion on the Federal Sentencing Guidelines
Part II

Continuing the discussion of From America and the Courts' 03/31/2004 video.

I'm sure you've all been waiting with baited breath for me to conclude the previous post - or not. You're getting it either way.

The two remaining themes from the video are:

(3) Prosecutors are now in control of the courthouse: This is a chorus heard often among those who find guidelines and mandatory minimums abhorrent. It is first raised here by Mr. Silver (55:25). Mr. Dillon tries to answer by saying that Congress controls the sentencing process and prosecutors are not the ones in control (1:04:55). The problem is that Silver is talking about apples and Dillon is switching the subject and talking about oranges. Yes, Congress does have the power to set sentencing ranges. Although one suspects that the Justice Department has more influence in Congress than Defense attorneys, the final prerogative lies with Congress.

However, that does not mean that the action taken by Congress is constitutional or just. Congress, by passing the guidelines and mandatory minimums took a great deal of power out of the Judicial branch and bestowed it upon the Executive. How? Why, I'm so glad you asked.

First, we must all realize that the prosecutor has always been, and will always be, a powerful force in the courtroom. By virtue of the fact that he decides what to charge he has a great amount of power over how much jeopardy a Defendant is in. Most of the time a Defendant can be charged with a number of ticky-tack charges on top of the major offenses (or if you're Martha Stewart they can skip the major offenses and just charge the ticky-tack ones). Prior to the advent of mandatory sentences and guidelines piling on charges was at least theoretically held in check by the fact that judges could convict on all 20 charges which the Defendant was guilty of but refuse to impose time for the pile of minor charges which the prosecutor had gone forward on. At this point the prosecutor was a power in the court while the judge was The Power in the court.

The combination of mandatory minimums and guidelines have changed that drastically. There is now a great incentive for prosecutors to pile on charges in order to induce a guilty plea. When ten counts are alleged and six carry minimum penalties of ten years apiece and with a guilty plea under the guidelines the sentence will only carry 10 years it really doesn't make any difference whether the Defendant is the Dumb Driver mentioned in #1 below or the big-time dealer. The Defendant is forced to take exactly the deal as it is demanded by the prosecution (Silver appropriately describes it as an "adhesion contract") and admit to whatever facts the prosecution might choose to put forth (whether they are exactly true or not). The current severe limitations on departures leave the judge more as a clerk stamping in the adhesion contract and putting the mandated penalty on the books than as a neutral arbitrator who is in control of the courtroom and able to provide a check on abuses.

As Ms. Price explains, discretion is going to exist somewhere in the system. It used to be split between the prosecutor as the party which charges and the judge as the party who sentences, with the balance of power in the hands of the sentencer. The sentencing structure which Congress has imposed has moved the discretion almost wholly out of the hands of the judge and into the hands of the prosecutors. (1:11:25) This raises two serious constitutional questions. (1) Is such a power grab constitutional? Can Congress shift the balance of power between the other two branches of government in such a massive manner? (2) Is the system which comes into being as a consequence of this change in who has the discretion a violation of a Defendant's basic constitutional rights to due process and/or trial? Is a Defendant entitled to a realistic opportunity for trial? Even more narrowly, is a Defendant entitled to have a neutral judge sitting as a check to potential charging abuses by the prosecutor or sentences which are non-proportional to those similarly situated to him (see #1 below)?


OKAY, it is extremely late at night. I am dead tired and I have to drive over 200 miles tomorrow because the federal marshals have been kind enough to settle my three current federal clients in different jails scattered all over the Commonwealth. So I'm signing off and going to bed. Ya'll will have to watch the video and form your own opinions on the fourth theme. I'm not really happy with what I've written above but I just don't have the time or enough active brain cells to polish it up. Hopefully it will at least provide some insight into the situation.

GOOD NIGHT, Mrs. Calabash--wherever you are!

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