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Article Excerpt
INTRODUCTION
I. DOJ CENTRALIZATION UNDER BUSH (II) II. "UNIFORMITY" IN FEDERAL SENTENCING: THE EXECUTIVE PERSPECTIVE III. CRITIQUE OF THE DOJ'S GUIDELINES PROJECT IV. THE PROMISE OF THE FUTURE CONCLUSION
INTRODUCTION
Last year will go down in the chronicles of federal criminal law as the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales, dispatched from the White House to preside over the Department of Justice (DOJ), discovered to his chagrin that U.S. Attorneys can bite back--at least when Congress wants them to. After he resigned in the face of widespread legislative and public criticism over his role in the replacement of several U.S. Attorneys (among other things), his post was filled by Michael B. Mukasey, a Washington outsider with deep roots in the Southern District of New York. (1) In the Supreme Court, the trio of Rita v. United States, (2) Gall v. United States, (3) and Kimbrough v. United States (4) enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy, and individualized judgment merge. To be sure, a close reader might consider the trilogy simply an announcement that the Court meant what it said back in 2005 when, relying on the Sixth Amendment right to trial by jury, it declared the hitherto mandatory Federal Sentencing Guidelines to be advisory in United States v. Booker. (5) But reiteration befitted Booker, since the message of its two different majority opinions had yet to be fully assimilated by the Justice Department or the appellate law of many circuits. Now the discretionary license given to district courts across the country would be written in larger print. In a world with vanishingly few trials, the ultimate decentralized actor-the jury--in whose name this line of cases started, has pretty much dropped out of the picture except in Justice David Souter's Gall concurrence. (6) The year thus presented a stark contrast between the toppling of the most centralized actor and the celebration of nearly the least.
It is too early to predict precisely how the trio of cases will play out, or what the dynamic between Justice Department headquarters (the amalgam of political leadership and central bureaucracy often referred to as "Main Justice" (7)) and the U.S. Attorneys' offices in the far-flung districts will be under Attorney General Mukasey or the next Administration. But it is the perfect time to think about the potential implications for the interaction of sentencing policy and the federal enforcement system.
In contrast to the Supreme Court's sentencing cases, which at least until recently focused on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing I wish to highlight is Main Justice versus the districts. The story of the Federal Sentencing Guidelines ought to be seen not just as an exercise in branch checking--of judges by the legislature, with help from prosecutors--but rather as part of a hierarchical project on the executive side whose contours and consequences were barely dreamed about at the outset. This project did not necessarily have to become intertwined with federal sentencing doctrine and practice. One could imagine a sentencing regulatory regime that gave free rein to prosecutorial discretion and focused only on judges. One could also imagine exertions of authority by the executive center that would not be expressed in sentencing policies. But intertwine the projects indeed did, and we are working through the fallout from their entanglement.
One goal of this essay is to place the Justice Department's recent sentencing policies within the larger context of the Department's efforts to control U.S. Attorneys' offices. A second goal, both normative and diagnostic, is to show the incoherence of those policies, at least when applied to that large part of the federal enforcement docket charging offenders normally prosecuted by state and local authorities. Indeed, the demand for consistency in how federal prosecutors handled those cases nationwide merely reinforced the most problematic aspect of the federal enforcement system-an unaccountability arising out of the insufficient demarcation of its responsibilities. A third goal is tentatively to celebrate the Supreme Court's recent (re)establishment of reasonable judicial discretion as the touchstone of federal sentencing law.
One need not have special confidence in the wisdom of sentencing judges to join this celebration. Appreciation of prosecutorial competencies and capabilities should be enough. What has often been framed as "judicial discretion" might better be seen as a coordinate exercise in local norm setting--an exercise in which line prosecutors, through charging power and shared control (with agencies) over investments in information gathering, inevitably play a critical role. Whether prosecutors will be allowed to embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development, remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system--one in which prosecution and sentencing decisions become something more than an abstract exercise in number generation.
Part I limns the Bush Administration's centralization efforts at the Justice Department. While these efforts initially appeared aimed more at undecentralization, their direction was pretty clear even before the U.S. Attorney firings. Part II explores how the Administration's centralization project intersected with its sentencing policy, each reinforcing the other, with the Sentencing Guidelines used as a tool of hierarchical control and the Attorney General's authority deployed in service of the Guidelines. Part III takes a normative turn and explains how the Department's sentencing policies, when promulgated against the backdrop of a federal docket largely anchored in local concerns, compounded the lack of consistency inherent in the system. Finally, Part IV explains how the Supreme Court's cases, when coupled with changes in the Department's political leadership and policies, may open up a new space for collaborative sentencing lawmaking at the district level.
I. DOJ CENTRALIZATION UNDER BUSH (II)
While the image of the overzealous prosecutor has its place in any doctrinal or institutional analysis of criminal justice pathologies, the risk of "shirking" looms as large here as in any other bureaucratic context. Prosecutors, and the agents or police officers they work with, (8) decide what cases to pursue; decide how much evidence to gather; assess the strength of the resulting case file; and conduct the negotiations that, if successful, will produce a guilty plea obviating the need for a trial at which their work could be assessed by others. There might be prosecutors who sometimes hope that negotiations break down and trials ensue. Trials are rare commodities in the United States, and trial experience is eminently marketable. (9) And there might be occasions in which a prosecutor prefers that a particular defendant gets a particularly high or low sentence. But the principal agency risk when it comes to sentencing is that, having threatened the highest sentence legally possible (or maybe even beyond that), the prosecutor will treat sentence years as currency to be exchanged for a higher conviction rate and maybe even personal leisure. (10)
This generic analysis extends across all U.S. jurisdictions. Yet the federal criminal enforcement system has its own special agency problems. The basic structure and its historical roots are just the beginning of the challenge. The bulk of federal prosecutions are brought by the ninety-four U.S. Attorneys' offices, which are generally staffed by local professionals, many of whom will be leaving government service in the not-too-distant future. (11) These offices--which predate the Justice Department by nearly a hundred years--are headed by presidential appointees, who report (on paper at least) only to the Attorney General and his Deputy. Each appointee at least traditionally has had her own local power base, having been selected with considerable input from local political leaders. (12) Cases come to these offices or are suggested by a wide range of agencies that include federal enforcement bureaus, whose field offices may have local ties of their own, and local police departments. (13) And to add to these institutional design challenges is the very nature of federal criminal jurisdiction, which--with a few exceptional areas where federal responsibility for the "crime rate" is somewhat clear--confounds any effort to devise effective performance measures. (14)
How have the federal enforcement bureaucracy's political principals responded to this degree of "slack" in the system? On the legislative side, the response over the past few decades has generally been a mix of acquiescence and self-defensive embrace. Through oversight and targeted funding, Congress regularly tries to shape prosecutorial priorities. (15) And the disclosures in the wake of the U.S. Attorney firings highlight the readiness of at least some legislators to be occasionally quite vocal in demanding zealous pursuit of certain cases or classes of cases. (16) But, at least until recently, the dominant pattern in congressional activity vis-a-vis U.S. Attorneys' offices has been to nurture their independence and their resistance to central control. (17)
Efforts by the Chief Executive to exercise such control have varied from administration to administration. That George W. Bush's Administration would be committed to increasing the authority of the Attorney General and his minions in Main Justice over U.S. Attorneys and their assistants was clear from the start, however, and over-determined. Certainly a relative increase in centralization was inevitable given the state of the Department at the end of President Clinton's tenure. That Administration's commitment to presidential authority, so nicely elucidated by Elena Kagan, (18) found comparatively little expression in the federal criminal enforcement area. Indeed, the flip side of the wide berth that the Clinton White House left Attorney General Janet Reno in the wake of politically sensitive investigations became her political weakness in battles with Congress, the FBI, and others. (19) One can fairly speculate that this lack of political clout affected the Department's authority over the districts. What is clear, though, is that there were few conspicuous assertions of that authority. (20)
Moreover, the Clinton Justice Department's enforcement priorities themselves engendered a devolution of power. A federal focus on violent crime will not always come with a commitment to increased district authority. Indeed, case-counting from Washington became a hallmark of the "accountability" measures in Project Safe Neighborhood, the Bush Administration's national gun violence program. (21) However, as federal enforcement agencies lack the manpower and informational resources to go after episodic criminal activity, and therefore depend on local police departments in this regard, the extent of the Reno Justice Department's commitment to violent crime itself had a centrifugal effect. (22) Gun possession cases, car-jackings, or street drug sales will rarely come to federal agents unless the local police make the arrests and turn over the defendants. That effect was magnified by the frankness and enthusiasm with which the Department ceded control of its "Anti-Violent Crime Initiative" to the districts and celebrated heterogeneous district strategies. (23) Indeed, the Reno Justice Department went further, allowing even international terrorism cases to be primarily run out of the districts--principally the Southern District of New York. (24)
The new management style of the Bush/Ashcroft Justice Department was not simply a response to the reduced baseline of the prior administration, however. It also reflected an embrace of unitary executive theory that both justified and presaged a broad-based effort to subordinate all prosecutorial decision making to centralized control. (25) And it was of a piece with the Bush White House's efforts in other areas of executive policy. (26)
Evidence that the Bush Administration would be tightening the reins on the districts came early, although it was not overwhelming. Following the precedent set by the Clinton Administration in 1993, though with somewhat less speed, (27) the Administration asked for the resignations of nearly all the U.S. Attorneys. (28) The number of replacement appointees with ties closer to the White House than to local power bases was interesting but not remarkable. So too was the stature of the new Criminal Division head, Michael Chertoff. (29)
The Department's response to Enron's collapse and other financial debacles made clear that Washington would not always prevail-or at least that Washington could be persuaded of the virtues of decentralization in some areas. In July 2002 with great fanfare, President Bush announced the formation of the Corporate Fraud Task Force. (30) What was most noteworthy about this "Task Force" was what it was not. Although a team of Assistant U.S. Attorneys (AUSAs) was brought together under Criminal Division supervision to pursue the Enron investigations and any prosecutions flowing there from, corporate fraud cases generally would still be handled by U.S. Attorneys' offices in much the same way as before. More than anything, the Task Force was a branding device that allowed the Administration to take political credit for the far-flung activities of the districts without taking on much responsibility or operational control. (31)
However, the creation of the Corporate Fraud Task Force occurred against the backdrop of 9/11--an extraordinary shock to the federal system and one that implicated or could be claimed to have implicated national security concerns in all future interactions between Washington and the districts. (32) Terrorism prevention would now be at the top of the Department's priorities and would exert considerable centripetal force. (33) Even as they recognized the coordinating role that U.S. Attorneys' offices would have to play in the creation of a domestic intelligence "network," (34) Justice officials worked hard to run the operation from the top.
Although there is no clear evidence that the Bush Administration initially selected U.S. Attorneys with an eye toward centralized control, there is evidence it started doing so by Bush's second term once Alberto Gonzales became Attorney General. (35) As for the firings that occurred in late 2006, it is hard to assess actual causation based on the current state of the evidence. (36) Not only does there appear to be a different story behind each firing, but some of the stories, particularly those of Carol Lam in San Diego and David Iglesias in New Mexico, involved exertions of power by local legislators. (37) Nonetheless, the available evidence does depict a significant level of dissatisfaction on the part of DOJ apparatchiks with efforts by the fired U.S. Attorneys to exercise and extend decentralized authority. In Arizona, Paul Charlton had the temerity to seek reconsideration of the determination that the death penalty he sought in one of his cases. (38) In Washington State, John McKay annoyed Main Justice officials by touting a local intelligence-sharing network. (39) And there was some dissatisfaction in Washington with Carol Lam's failure to hit the right number of immigration cases. (40)
One cannot speak in definitively comparative terms because no other recent Justice Department leadership has suffered the compelled disclosure of so broad a range of internal communications. Yet it is hard to peruse the hearing testimony and the documents released in connection with the legislative probes of the U.S. Attorney firings without getting the overwhelming impression that what may have begun as a response to Attorney General Reno's policies had, under Alberto Gonzales, developed into a concerted effort to rein in district initiative and authority.
II. "UNIFORMITY" IN FEDERAL SENTENCING: THE EXECUTIVE PERSPECTIVE
Although most critiques of the Bush Administration's sentencing policies have focused on how they affected the allocation of authority between judges and prosecutors, the Department's sustained campaign against judicial sentencing discretion also ought to be seen in the context of the executive centralization project just described. If Washington were to tame the districts, it would need a mechanism of control far more pervasive than the replacement of allegedly recalcitrant political appointees. In this effort, the Bush Administration found itself a willing partner in Congress, and an alluring tool in Congress's commitment to the notion of "uniformity" in federal sentencing.
Having given scant thought to which cases within the ever-growing jurisdiction of federal enforcers ought to be pursued, Congress had nonetheless decided that it wanted "uniformity" in their handling. Such was the message of the Sentencing Reform Act (SRA) of 1984. (41) To be sure, the SRA also reflected the same distrust of judges and their characteristic leniency that inspired the statutory mandatory minimum provisions that began to proliferate in the late 1980s. But there is no reason to doubt Congress's commitment to uniformity-albeit an extremely thin notion of uniformity, one that made no attempt to limit executive decisions about which cases to prosecute but simply sought to ensure that similar defendants so selected would be treated similarly.
As Kate Stith notes, the Sentencing Guidelines and the statutory mandatory minimum provisions with which they were intertwined certainly created the potential for a vast transfer of discretionary power from judges to line prosecutors. (42) The new scheme was supposed to constrain prosecutors as well. Although they would still have the ability either not to bring a case or to drop it thereafter, the purpose of the modified real offense sentencing approach of the Guidelines was to limit prosecutorial leverage in plea negotiations by requiring judges to base a defendant's sentence on all relevant conduct, not just the subset of it specified by the prosecutor. (43) But this was not to be, as judges largely abandoned the field to the parties and particularly to prosecutors. Stith has elsewhere explained:
Probation officers soon learned that it is time-consuming and often unproductive to attempt to learn "facts" from sources other than the attorneys in the case, while judges generally had no interest in forcing the parties to prove or disprove 'facts' that neither party wanted the sentence to be based upon. (44)
With substantial control over the flow of offense-related facts to the judge, and even over the investment of resources in the discovery of facts to begin with, prosecutors were left with unprecedented sway over sentencing.
Yet even as judges chafed at having their hands tied by a regime that left line prosecutors free to manipulate sentences, the Justice Department leadership came to see the regime as a means of regulating those same line prosecutors. Those decrying the increase in prosecutorial power caused by the Guidelines project often forget that, particularly in the federal system, prosecutorial power is not monolithic. And what to judges seemed like a constraint on their discretion could also be viewed as an effort to constrain prosecutors, with the judges involuntarily enlisted as monitors on behalf of prosecutorial hierarchs in service...
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