Federal Prosecutors Have Too Much Power In Deciding Who Goes To Prison
Almost since the inception of the federal sentencing guidelines system in 1984, critics have argued that it gives too much discretion to federal prosecutors and that the sentences handed out – especially for drug crimes – are draconian. Of course, part of the problem under the guidelines system as it was first enacted was that judges had almost no discretion in the sentencing process. The guidelines assigned a certain range of time for a certain crime and the judge had to pronounce a sentence within that range, unless the prosecutor filed a 5K motion permitting the court to go below the guidelines range.
With the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 245 (2005), which held that mandatory guidelines violate the 6th Amendment, judges were given the power to sentence outside of the guidelines range. However, even in the post-Booker world, prosecutors still wield an immense amount of power to affect a defendant’s sentence. As Mark Bennett, a federal district court judge in the Northern District of Iowa, has observed, prosecutors still largely control sentencing because mandatory minimum sentences and guidelines ranges are determined by the decisions made by prosecutors, not judges.
Judge Bennett gives an example of one way that prosecutors exercise their discretion in the post-Booker world – the decision whether to file a notice under 21 U.S.C. § 851 of the government’s intent to seek an enhanced sentence based upon a defendant’s prior convictions. If the prosecutor files the Section 851 notice, a defendant’s mandatory minimum sentence will at the very least double and his maximum possible sentence will most likely rise steeply as well. The 851 notice applies no matter how old the defendant’s conviction is and the fact of the prior conviction itself – whether or not it actually exists and is valid — does not even have to be submitted to a jury or found beyond a reasonable doubt.
The massive shift in sentencing power from the judicial branch to the executive branch that has occurred over the past 29 years under the guidelines system was done for the purpose of creating uniform sentences. The idea was that two defendants who had committed the same crimes should receive roughly the same sentences. However, the dirty little secret of the guidelines system is that rather than decreasing or disappearing under the guidelines system, sentencing disparity has dramatically increased, largely due to the power of federal prosecutors to make unchecked decisions that affect the length of sentences. For instance, a federal defendant in Iowa is 1056% more likely to receive an 851 enhancement than a defendant in neighboring Minnesota. A defendant here in the Eastern District of Pennsylvania is 2257% more likely to receive the enhancement than a defendant in the neighboring Middle District of Pennsylvania.
Another way that prosecutors exercise their discretion is through the setting of the terms of plea agreements in white-collar criminal cases, which increase or decrease the amount of loss associated with a fraud offense. The guidelines put a great amount of emphasis on the amount of loss when calculating the severity of the conduct. Up to 70% of the total offense level can be based upon the loss calculation regardless of how relevant it is to the seriousness of the crime. As anyone familiar with the system knows, there is little or no “negotiation” of loss amounts in white- collar cases. The prosecutor largely dictates this amount because he or she holds most if not all of the cards. Thus, in this class of cases as well the prosecutor, not the judge, determines the sentence.
Judge Bennett has concluded that, after nearly 30 years, the sentencing guidelines system is a failure and that radical changes should be made. Another federal judge, Jed Rakoff, of the Southern District of New York, has gone a step further, calling for the sentencing guidelines to be “scrapped in their entirety.”
by William Spade, Esq.
 In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that the Sixth Amendment does not require the government to set forth in the indictment and prove beyond a reasonable doubt the fact of a defendant’s prior convictions.
 Judge Rakoff’s remarks were made during his keynote address on March 7, 2013, to the 27th Annual National Institute on White Collar Crime, sponsored by the American Bar Association.