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Article Excerpt
FEATURE CONTENTS
INTRODUCTION I. TRY AND CATCH THE WIND: EFFORTS TO LIMIT DISCRETION IN FEDERAL CRIMINAL SENTENCING A. The Sentencing Reform Act of 1984: Sentencing Rules To Control Judges B. The Sentencing Commission: "Real Offense" Sentencing To Control Prosecutorial Undermining of Sentencing Rules C. The Inquisitorial Implications of "Real Offense" Sentencing D. Main Justice: Constraints on Prosecutors and the Pursuit of Centralized Control II. TAKING MEASURE OF THE GUIDELINES REGIME A. Sentencing Cases in the Courts of Appeals B. Sentencing Data from the District Courts C. Measuring Other Consequences of the Guidelines III. THE CHALLENGE OF THE FEENEY AMENDMENT IV. THE SUPREME COURT'S POWERS TO LIMIT PROSECUTORIAL DISCRETION A. Booker: Recharging Judges and Prosecutors B. Booker Is for Real CONCLUSION
INTRODUCTION
In the federal criminal justice system, both prosecutors and judges have historically exercised broad discretion--prosecutors in charging (or not charging), and judges in sentencing. Both prosecutorial and judicial discretion in the criminal process date back to the very beginnings of the Republic. (1) For most of our history, the exercise of discretion has simply been taken for granted by judges, by prosecutors, and most importantly, by Congress, which has created a system of criminal laws that requires--and has always required--the exercise of discretion. Unlike the civil system in continental Europe, the common law has never featured or claimed to feature mandatory exercise of prosecutorial power.
In the modern era, we have grown suspicious of discretion. To a formalist, discretion seems the very antithesis of law. To a realist who views law as simply power, discretion is, at best (in Judge Marvin Frankel's memorable book title), "law without order." (2) A central campaign of the modern age--extending far beyond sentencing and the criminal justice system--has been to reduce the discretion of government officials. (3)
I use the term "power" to refer to lawful authority to take action against an individual. "Discretion," on the other hand, is the authority not to exercise power. In the context of the criminal law, to exercise discretion means, most simply, to decide not to investigate, prosecute, or punish to the full extent available under law. Discretion in federal criminal law enforcement is so great and so difficult to constrain because it is a necessary concomitant of the substantive federal criminal law. (4) That is, federal statutory criminal law has great breadth and has always included both lesser-included offenses and overlapping offenses. Moreover, the federal criminal law has always been an adjunct to state criminal law; most conduct that violates federal law also violates state law. Thus, in many instances, federal prosecutors must decide both whether to intervene in potential state prosecutions and, if they do choose to intervene, which crimes to charge. Federal prosecutorial decision makers (whoever they may be--line prosecutors, U.S. Attorneys, or officials and bureaucrats in the Department of Justice) necessarily have broad charging discretion. Concomitantly, sentencing authorities (whoever they may be--judges, administrative agencies, or prosecutors) necessarily have broad discretion over punishment. As Congress well understands when it enacts federal criminal proscriptions, both prosecutorial and sentencing discretion are inevitable because of the broad reach of these proscriptions and the severity of authorized punishments. (5) Resource constraints as well as prudence dictate the conclusion that the federal criminal law cannot be applied in its full rigor. (6) Someone has to exercise authority to decide what to investigate, what to prosecute, what to charge, and how great punishment will be.
The inevitable exercise of charging and sentencing discretion in the federal criminal justice system has been a recurring theme in the saga of the Federal Sentencing Guidelines, whose recent transformation by the Supreme Court from a "mandatory" to an "advisory" regime (7) I consider in this essay. I do not view the Court's recent Guidelines decisions only from an internal perspective--that is, in terms of the competing constitutional doctrines expounded in these cases. Rather, I consider the recent decisions against the backdrop of inevitable, ongoing institutional rivalries. The institutions in play include not only the inferior federal courts (both trial and appellate), Congress, and the U.S. Sentencing Commission, but also the Supreme Court, federal prosecutors in the ninety-four U.S. Attorneys' offices, and, importantly, the U.S. Department of Justice in Washington, D.C. ("Main Justice"). Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies have examined the transfer of discretion from judges to prosecutors. Of equal significance are two other ongoing competitions for power: one between local federal prosecutors and officials in Main Justice, the other between Congress and the Supreme Court. In its 2005 decision in United States v. Booker (8) and its recent decisions elaborating the new sentencing regime constructed in Booker, the Supreme Court asserted the significant responsibility and authority of sentencing judges, local prosecutors, and the Supreme Court itself.
In Part I, I seek to identify the critical decisions made in constructing and implementing the Guidelines, decisions that ultimately resulted in increased prosecutorial power and discretion. This discretion could, and would, be used to influence defendants to plead guilty or face remarkably severe Guidelines sentences. Although it was not the goal either of sentencing reformers or of Congress, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the U.S. Sentencing Commission, but to federal prosecutors in general and--particularly in recent years--to Main Justice.
Because I have elsewhere expressed skepticism about the project of uniform application of sentencing rules, (9) I do not dwell here on the issue that motivated the Sentencing Reform Act (10)--the existence of "disparity" among judges in sentencing. Disparity unquestionably exists. But requiring judges to apply national sentencing rules risks masking both the continued significance of the individual judge in sentencing and the increased leverage over defendants afforded to prosecutors in plea bargaining. The federal effort to stamp out judicial disparity through the Guidelines was probably not successful. (11) In any event, the decades-long enterprise provided prosecutors with indecent power relative to both defendants and judges, in large part because of prosecutors' ability to threaten full application of the severe Sentencing Guidelines.
Part II explains why neither appellate decisions nor raw sentencing data are an accurate tool to measure the Guidelines' success in achieving greater national uniformity in sentencing--nor even for measuring the extent to which the Guidelines are actually implemented. Each criminal sentencing is ultimately highly "local," a result of the strategic decisions of the prosecutor, the defense attorney, and the judge--all acting within the factual confines of the case at hand as well as the larger norms and practices of the judge's courtroom, of the federal district, and of the relevant circuit. Further, the sentencing decisions of the courts of appeals--including the "win/loss" ratio for defendants and the government--tell us very little about law on the ground. Few sentencing decisions are appealed by defendants, and even fewer are appealed by the government. (12) While courts of appeals may use these cases to signal to district courts how rigorously they should apply the Guidelines, this signal is imperfect at best and may be ignored altogether in cases that are not likely to be appealed. Indeed, even ground-level sentencing data--the sort of data assiduously compiled by the Sentencing Commission for every sentence in the federal courts--is a poor measure of the extent of Guidelines implementation and compliance. Although we can count the case reports submitted by judges, and thereby determine the ratio of reported Guidelines sentences to reported non-Guidelines sentences, there is no way to judge how accurate these reports are--or even what "complying" with the Guidelines would mean.
The unreliability of appellate decisions and raw sentencing data as portrayals of actual practice has not always been appreciated. Interested political observers, in particular, have looked to appellate case law and to the frequency of reported non-Guidelines sentences as a measure of the extent to which judges have "complied" with the Guidelines and thus implemented Congress's design to reduce sentencing disparity. Part III recounts Congress's 2003 decision--in reaction to sentencing decisions in particular white-collar cases and to nationwide data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases--to enact legislation that represented a direct challenge to every level of the federal judiciary, the Sentencing Commission, and local prosecutors. By design, this legislation, known as the Feeney Amendment ("Feeney"), (13) simultaneously empowered Main Justice, which was Congress's partner in the endeavor to limit if not eliminate the exercise of discretion by decision makers in the field. Feeney added language to the Sentencing Reform Act to overturn a unanimous Supreme Court case, Koon v. United States, (14) that appeared to encourage judicial disregard of the Guidelines. Feeney also directed the Sentencing Commission to amend the Guidelines to reduce judicial discretion to impose below-Guidelines sentences, and directed the Department of Justice to monitor the sentencing advocacy of prosecutors and the sentencing decisions of judges--all in aid of reducing the opportunities for individual judges and prosecutors to exercise discretion outside the confines of the Guidelines.
I explain in Part W why Booker (as well as Booker's immediate predecessor, Blakely v. Washington, (15) and Booker's progeny of 2007 (16)) can be understood as an institutional response by the Supreme Court--which for more than a decade had been loath to intervene or even seriously analyze constitutional and other issues raised by the Guidelines--to several developments that threatened the integrity of federal criminal sentencing and, indeed, of the whole federal criminal justice system. In a dramatic exercise of judicial power, Booker undid the Feeney Amendment, limited the power that inheres in prosecutors in a regime of mandatory sentencing rules, and counteracted the centralizing impulse of Main Justice. The doctrinal basis of Booker's holding that mandatory Guidelines are unconstitutional, sounding primarily in the jury-trial right of the Sixth Amendment, had been elaborated over the course of several years--beginning in the late 1990s, continuing with Apprendi in 2000, (17) and most importantly with Blakely in 2004. But it is not a mere coincidence, in my view, that both Blakely and Booker--including the latter's unexpected remedy that left the Guidelines in place but assertedly made them "advisory"--occurred in the wake of Congress's own extraordinary intervention in 2003 and Main Justice's subsequent restrictions (required by Feeney) on local prosecutorial autonomy.
The Supreme Court's three federal sentencing decisions of 2007 reaffirm that Booker restored significant judicial power, and thus permits the exercise of judicial discretion, over sentencing; post-Booker discretion is greater even than that which existed under the pre-Feeney Guidelines, though not nearly as great as that which existed in the pre-Guidelines era. By introducing the opportunity for federal trial judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but also counteract the constraints that Main Justice imposed on line prosecutors in the wake of the Feeney Amendment. (18) Once again, sentencing is to a significant extent a "local" event. After Booker, the Sentencing Commission and Main Justice may still be calling signals but the decision makers on the playing field--judges and prosecutors--need not follow them.
I. TRY AND CATCH THE WIND: EFFORTS TO LIMIT DISCRETION IN FEDERAL CRIMINAL SENTENCING
Neither sentencing reformers nor their supporters in Congress set out to transfer sentencing discretion from judges to prosecutors. The idea of Marvin Frankel, then a judge in the Southern District of New York and later exalted as the "father of sentencing reform" by Senator Edward M. Kennedy, (19) was simply to make criminal sentencing subject to "law." Judge Frankel did not foresee (or at least did not discuss) the possibility that written sentencing rules could have the effect of transferring sentencing discretion to prosecutors. But the drafters of the Sentencing Reform Act (including then-Professor Stephen Breyer, on leave from Harvard Law School and serving on Kennedy's staff when the Senator introduced sentencing reform legislation in the late 1970s) were aware of this possibility. They sought to give the new administrative agency charged with writing sentencing rules, the U.S. Sentencing Commission, authority to ensure that these rules, and not the charging decisions of prosecutors, would determine federal sentences. Likewise, the original members of that Commission (who included then-Judge Stephen Breyer of the Court of Appeals for the First Circuit) made earnest efforts on several fronts to cabin not only the discretion of judges but also, to a lesser extent, the discretion of prosecutors. The Commission was assisted in this effort by Main Justice, which directed U.S. Attorneys and front-line prosecutors to limit their exercise of discretion, and thereby achieved a measure of centralized control over federal prosecutorial charging and sentencing decisions.
A. The Sentencing Reform Act of 1984: Sentencing Rules To Control Judges
The most direct method of limiting discretion is to spell out in detail the rules that decision makers must apply, so as to reduce the need or opportunity for the exercise of judgment. A paradigmatic example is the Federal Sentencing Guidelines, (20) whose overriding purpose was to reduce inter-judge sentencing disparity by reducing judicial discretion. (21) The Guidelines are an extraordinarily complex set of sentencing factors, with weights attached to each factor that judges were instructed to apply to calculate each offender's "applicable [G]uideline[s] range." (22) The Sentencing Reform Act required that judges sentence within this range unless there was a lawful ground for "departure," either specified by the Sentencing Commission in the Guidelines themselves or, residually, if the case involved highly atypical and extraordinary factors not taken into account by the Commission in its Guidelines. (23) In order to ensure that sentencing judges faithfully and fully applied the Guidelines, including their requirement of "real offense" sentencing and their limitations on departures from the calculated Guidelines range, the Sentencing Reform Act provided, for the first time, that both the defendant and the government would have the right to appeal. Appeals could be based either on the ground that the sentencing judge had misapplied the Guidelines in calculating the range or on the ground that the judge had departed from this range for a reason not expressly sanctioned by the Guidelines or the Sentencing Reform Act. (24) In other words, district judges had an obligation to implement the Guidelines, and the courts of appeals would be available in every case to "police" the sentencing judges. (25)
Accordingly, from their inception, the Sentencing Commission's proclamations were not merely "guidelines" or recommendations, but enforceable rules that sentencing judges were legally obliged to follow. Even the sentencing judge's authority to impose a sentence outside the calculated Guidelines range (to "depart") was itself the subject of Guidelines, technically called "Policy Statements," (26) issued by the Commission. Opportunities for departure did exist. In the most important of these, the judge was released of all obligation to give a sentence in the Guidelines range when the government made a motion (the "5K1 motion," as it became known, after the section of the Guidelines authorizing such motions) (27) for a downward departure on the ground that the defendant had substantially assisted in the prosecution of others. Beyond such government-sponsored departures for cooperators, however, the original Guidelines limited interstitial opportunities to depart for reasons not expressly permitted by the Guidelines themselves. Indeed, inasmuch as departures not expressly permitted by the Guidelines were available only in cases exhibiting extraordinary circumstances or aberrant behavior, (28) the Guidelines were for all intents and purposes "mandatory" for most defendants other than cooperators. As Justice Antonin Scalia recognized in his 1989 dissent in Mistretta (involving a challenge to the constitutionality of the Guidelines regime on separation-of-powers grounds), (29) and as Justice Harry Blackmun's majority opinion refused to acknowledge, the Guidelines were law. (30)
The intentions of the Sentencing Commission notwithstanding, reducing judicial discretion through sentencing rules-whether promulgated by a legislature or by an administrative agency such as the Commission-threatens to enhance prosecutorial authority over sentencing: once the rules are published, the prosecutor, through her discretionary charging authority, effectively determines what the defendant's Guidelines sentencing range will be. To be sure, prosecutorial charging practices have always affected the sentence, but when judges had discretion to impose any sentence up to the statutory maximum or down to the statutory minimum, prosecutorial power was potentially limited or counterbalanced by the possibility of judicial discretion. Moreover, it is an overstatement to suggest that a federal prosecutor ever has unlimited discretion in selecting charges or determining the sentence. Though certainly broad-ranging, even the federal criminal law is limited in its scope and often detailed in its specification of elements of an offense; as a result, evidentiary and resource constraints necessarily limit the charges that a prosecutor can bring in any given case. (31)
Yet there is no doubt that because they set forth the consequences of each statutory charge and each specified sentencing factor, the Federal Sentencing Guidelines had the potential to effect a transfer of discretion over the severity of punishment from the judge to the prosecutor. Indeed, even as Congress set about in the late 1970s and early 1980s to construct a system in which judicial discretion would be severely limited, the architects of that system realized the possibility that the effect of their reform efforts could be to transfer decisionmaking power not to the bureaucratic institution they were creating to write sentencing rules (namely, the U.S. Sentencing Commission), but to federal prosecutors. (32)
In the early years during which Congress debated Senator Kennedy's sentencing reform bill, the Justice Department may not have fully realized the potential of sentencing rules to enhance prosecutorial power. The Department did not oppose efforts to reform sentencing, but a review of the legislative materials indicates that, at best, sentencing reform was not high on the legislative agenda of the Carter Administration. (33) The Department's Criminal Division was in any event preoccupied with other concerns, which ultimately did lead to incremental first steps in the centralization of prosecutorial discretion in Main Justice. In the wake of the ABSCAM investigation, which ensnared and convicted several members of Congress and led to oversight hearings highly critical of the underlying investigation, (34) the Criminal Division in 1979 promulgated nationwide regulations on the use of informants and undercover agents by the FBI. (35) Of even greater potential significance, the Criminal Division prepared and published in 1980, under the signature of Attorney General Benjamin Civiletti, the first general policy statement to guide the exercise of prosecutorial discretion within each of the ninety-four districts. The 1980 Principles of Federal Prosecution provided somewhat abstract guidance relevant to all types of federal prosecutions, while conceding the importance of local control over prosecutorial priorities and saying very little about sentencing. (36)
In these years, the ninety-four U.S. Attorneys exercised significant local autonomy both in charging and in setting prosecutorial priorities. While approval from Main Justice was required by statute in some circumstances (for instance, prior to seeking a court-authorized wiretap), (37) and by internal regulation for prosecution of certain offenses (for instance, where the conduct has already been prosecuted in state court), (38) for the most part there was little centralized control of line prosecutors--Assistant U.S. Attorneys--beyond that which a U.S. Attorney might choose to exercise within his own district. (39) The Justice Department itself had no policies related to criminal sentencing. Indeed, the 1980 version of Principles of Federal Prosecution cautioned prosecutors not to make "sentencing recommendations" unless required to do so by a plea agreement or where warranted by "the public interest." (40)
Under the Reagan Administration, however, the Department included the Sentencing Reform Act in its pending crime control proposals. (41) The Department strongly supported sentencing guidelines as a means of achieving nationwide sentencing uniformity and ensuring more severe punishment of violent and white-collar crime; departmental spokesmen expressly noted and approved the prospect of guidelines that would be based not just on the offense of conviction, but also on the offender's criminal history and the particular facts of his criminal conduct. (42) As enacted, the Sentencing Reform Act of 1984 provided that a representative of the Department of Justice would sit ex officio on the Commission. (43)
The 1984 legislation included provisions that sought to ensure that the advent of sentencing guidelines would not simply transfer sentencing authority to line prosecutors in their plea bargaining with defendants. The Sentencing Reform Act specifically authorized the Commission to issue policy statements governing judicial review of plea agreements under Rule 11 of the Federal Rules of Criminal Procedure. (44) The accompanying Senate Report explained, "This guidance will assure that judges can examine plea agreements to make certain that prosecutors have not used plea bargaining to undermine the sentencing guidelines." (45) Of equal significance, the statute contained several admonitions that in effect urged the Sentencing Commission to adopt sentencing rules that were based not only on the offense of conviction (which would give individual prosecutors significant control over the sentence by exercising their charging discretion), but also on additional aspects of the offender's "real offense," (46) in order to avoid undue control of sentences by prosecutors.
B. The Sentencing Commission: "Real Offense" Sentencing To Control Prosecutorial Undermining of Sentencing Rules
The Sentencing Commission, too, well understood from the beginning that sentencing rules could simply transfer discretion to prosecutors. (47) Yet many thoughtful reformers (48)--apparently including Judge Breyer, one of the original members of the Commission--doubted the feasibility of regulating prosecutorial charging authority through the simple mechanism of ex ante rules. In the introductory chapter of the Guidelines, widely understood to have been written by Judge Breyer, the Commission asserted that it had "decided that these initial guidelines will not, in general, make significant changes in current plea agreement practices." (49) While a strong proponent of the Guidelines "real offense" approach, (50) Breyer was apparently of the "incrementalist" (51) view that both judicial and prosecutorial discretion could not simultaneously be limited. In any event, the Commission was busy enough just trying to write from scratch sentencing rules for judges, and it is highly unlikely that the Department of Justice would have continued to support the enterprise if the Commission had sought to constrain directly the discretion of prosecutors as well as judges.
The Commission did, however, make a powerful attempt to restrain prosecutorial discretion indirectly, by accepting Congress's invitation to use the offense of conviction only as the starting point for the calculation of an offender's Guidelines sentence. The final Guidelines, promulgated in mid-1987 to take effect on November 1, 1987, provided that the ultimate sentence would be calculated on the additional basis of a host of supplementary aggravating factors (and a few mitigating factors), including consideration of the offender's criminal behavior related to the crime of conviction (even if not charged or convicted) and his prior criminal convictions. (52) Paradoxically, the Commission sought to limit prosecutorial control of sentencing by imposing additional controls on the judge--specifically, requiring her to sentence not on the basis of the offense of conviction alone, but also on the basis of "real offense" factors beyond the offense of conviction. The idea was that these "real offense" factors either existed or did not exist in any given case; it did not matter whether the prosecutor charged them or not. In this way, a sentence would be based on the rules set forth by the Commission, not on the exercise of discretion by either the judge or the prosecutor.
Stephen Breyer has been perhaps the most influential supporter of some sort of Guidelines regime. He has many times explained--first as a judge and Commissioner, (53) and most recently as a justice in his Apprendi and Blakely dissents (54) and his Booker remedy opinion (55)--that the reason that the Guidelines require "real offense" instead of "charged offense" sentencing is to ensure that punishment is not based on the arbitrary value judgments of the judge or the prosecutor. Rather, sentencing is to be based on the value judgments of the expert agency whose rules are written in advance without any particular defendant in mind. To ensure that judges sentence on the basis of "actual" offense conduct, rather than what the prosecutor charges, the particular sentencing rules created by the Commission were based on easily ascertainable factors such as prior convictions, and on quantifiable criteria such as amount of drugs or amount of monetary loss. The Guidelines largely ignore--indeed, generally prohibit consideration of-less objective criteria such as those relating to the character or personal history of the offender. (56)
Moreover, chapter six of the Guidelines included several admonitions to judges designed to avoid prosecutorial undermining of the enterprise of "real offense" sentencing. While these instructions were clearly in tension with the assertion in the introduction of the Guidelines that the Commission did not intend to interfere with plea bargaining, the chapter six policies addressing these bargains were directed to the judge rather than to the prosecutor. (57) A judge could accept a plea agreement to drop or withhold some charges only if "the remaining charges adequately reflect the seriousness of the actual offense behavior." (58) Similarly, the judge could accept an agreement providing for departure from the Guidelines range only if there was a "justifiable" reason (59) for the departure, as provided in the Sentencing Reform Act or the Guidelines themselves. A third rule required that all plea agreements accepted by a judge must "set forth the relevant facts and circumstances of the actual offense conduct" and "not contain misleading facts." (60) Finally, the Commission asserted that the sentencing judge is not bound by factual stipulations of the parties, but instead is to determine "the facts." (61)
C. The Inquisitorial Implications of "Real Offense" Sentencing
It is one thing to tell the judge that she must sentence on the basis of "the facts." It is something else altogether to ensure that she knows what "the facts" are. The prosecutor and defense attorney in a common law, adversarial system of justice do not, separately or in tandem, perform the function assigned to an investigating magistrate in an inquisitorial system. In particular, as long as defendants are allowed to plead guilty and as long as prosecutors do not operate under a requirement of "mandatory" prosecution, it will be in the interest of both parties in many cases to arrive at a settlement that involves less than full application of the law. Where a negotiated settlement has been reached, neither the defense attorney nor the prosecutor has any incentive to inform the sentencing judge of facts beyond those corresponding to the elements of the offense to which the defendant has pled guilty and the Guidelines factors that the parties have agreed are relevant. The judge in the common law tradition is not an independent investigator, but rather, a neutral factfinder on the basis of the evidence brought to her attention by the parties in the case.
The Sentencing Commission was aware of this problem. To overcome it, the Commission adopted a further inquisitorial procedural innovation by enlisting a third party--beholden neither to the prosecutor nor to the defendant--to assist the judge in ferreting out "the facts" of the case. This third party was the probation officer, an employee of the judicial branch whose task during the era of discretionary sentencing was to provide the judge with a pre-sentence report containing, in addition to a social history of the defendant, an outline of the two "versions" of the facts--those pressed by the prosecutor and those pressed by the defendant. The Sentencing Commission boldly sought to transform both the role of the probation officer and the content of the pre-sentence report. Henceforth it would contain only one version, presumably that of the probation officer himself, noting facts in dispute. Moreover, the probation officer was assigned the task of determining the "actual" facts of the case, independent of the parties. Finally, the Commission took great pains to teach probation officers around the country the content and application of the hundreds of pages of Guidelines rules, so that each one could perform for the judge an initial calculation of the defendant's Guidelines range and any lawful bases for departure up or down from this range. (62)
A final inquisitorial innovation was to require--rather than merely allow--judges to base the sentence on the "actual" facts (the "real offense"). (63) Accordingly, the judge as factfinder was explicitly empowered to range beyond the factual assertions of the parties, and even beyond whatever additional facts the probation officer might have brought to her attention, through sua sponte inquiries into the existence of aggravating or mitigating Guidelines factors that no one else had raised.
In the early years of the Guidelines, complaints from defense counsel suggested that this system was working as envisioned by the architects of the Guidelines. There were suggestions that the probation officer was a "third adversary in the courtroom," (64) advising the judge of facts that neither the defense attorney nor the prosecutor sought to bring to the judge's attention. And there was concern in many quarters that the Guidelines' list of sentence enhancements--ranging from the amount of monetary loss in a fraud case to the defendant's "role in the offense" (65) or "obstructive" (66) conduct in the whole gamut of federal criminal cases--essentially created new "Guidelines crimes." (67) The defendant would, in effect, be held "accountable" (68) and punished for these crimes--yet without any formal charge by prosecutorial authorities, much less the opportunity to demand a trial by jury and proof beyond a reasonable doubt.
The sentencing hearing in the Blakely case, under Washington State's statutory regime of mandatory guidelines (which closely resembled the federal system in structure), provides an example of the inquisitorial approach in practice. There, the defendant pleaded guilty to kidnapping, and neither the prosecutor nor the probation officer chose to allege at the sentencing stage that the kidnapping was "aggravated," a finding that would have supported a sentencing enhancement. But the judge knew enough about the case, which had been widely publicized, (69) to raise the issue on his own, and he ordered the prosecutor to present evidence of aggravation, resulting in a three-day hearing at the end of which the judge applied the sentencing enhancement. (70) The sentencing in Blakely proceeded as it would in an inquisitorial system, in which the judge is charged not merely with fact-finding, but with finding out the facts. (71)
From a comparative law perspective, it is not surprising that mandatory real offense sentencing was adopted in large part to limit the discretion of prosecutors. Hallmarks of inquisitorial systems, in theory if not practice, (72) include the ideals of "mandatory" prosecution and of the dossier compiled by an independent, investigatory factfinder. (73)
The U.S. Constitution, however, was not written to delineate the powers of government and the rights of the accused in an inquisitorial system of justice. Under the accusatorial approach embedded in our eighteenth century Constitution, an individual cannot be formally punished for crimes with which she was not duly charged and convicted. As discussed in Part IV, in its belated constitutional awakening to the realities of regimes featuring determinate sentencing enhancements, the Supreme Court held in Apprendi, Blakely, and Booker that punishment for conduct for which the defendant has not been charged and convicted--that is, for conduct that a judge decides, on a lesser standard of proof, a defendant "really" did-is incompatible with the adversarial procedures guaranteed by the Fifth and Sixth Amendments. In retrospect, it is astounding that for a decade this basic constitutional defect of the Guidelines system escaped the notice of every member of the Supreme Court but one. (74)
D. Main Justice: Constraints on Prosecutors and the Pursuit of Centralized Control
As noted, the Guidelines' requirement of "real offense" sentencing and...
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