Panel 1: Prosecutorial Discretion and Its Challenges
Wright: If you take a public choice view of regulation, there are imbalances everywhere. Even in the 1800s, dairy farmers were interested in regulating margarine and leaving butter alone. This is true with criminal law as well.
- police as regulated parties -- patchy
- judges as regulated parties -- more comprehensive
- parole boards, regulated out of existence
- prosecutors as regulated parties -- code limits relaxing
The imbalance lies at the bottom of the frustrations facing the state sentencing commissions.
Kansas and Minnesota: We're not going there.
- Legislative instructions, recognize the sentencing impact of prosecutor choices
- Other priorities override
- Linguistic impossibility
- Political impossibility
Kansas is a nice example of where a committee got together, thought about, decided there were too many political barriers to regulating prosecutors. One problem was what Wrights calls a linguistic impossibility; how to make meaningful rules to guide prosecutor's discretion, when prosecutors' jobs are so difficult to define narrowly? [Wright says he sees the same problem with regulating judges, however.] Hard to find a legislature enthusiastic about regulating prosecutors, especially as criminal codes grow more prolix and the choices available to prosecutors multiply.
Washington: We're been there, and we can go back.
- Christopher Bayley and Norm Maleng catch guideline fever.
- Evidentiary sufficiency, for property and personal crimes.
- Factor list.
- Legislation (with prosecutor blessing) requires commission to create guidelines
- Cf. "descriptive" sentencing guidelines for judges.
- But aren't these limited expectations to place on prosecutors?
When the legislature said it would regulate the prosecutor along with the judges, the prosecutors went along with the standards of evidentiary sufficiency and factor list.
New Jersey: We're going where no prosecutor has gone before.
Not known as a hotbed of sentencing reform. Until recently, there was no sentencing commission.
- Super-potent mandatory minimums, based on school zone proximity and drug amounts. The prosecutor could reach a plea agreement and the judge was required by statute to impose the sentence agreed upon.
- Judges push back in 1992, State v. Lagares, saying as a matter of separation of powers, judges' power includes selecting sentences and the statutes that cut judges out of the deal were unconstitutional. T
- County-level guidelines: the remedy was for the state attorney general to issue guidelines to the prosecutors.
- Brimage 1 (1998): prior record, offense features. Supreme Court said the guidelines varied too much from county to county. New Jersey attorney general issued state-wide guidelines that look quite a bit like sentencing guidelines. They even speak in terms of "departures" from the prosecutor guidelines. It was revised to a 104 page guideline, to allow for more consideration of "relevant conduct."
- Brimage 2 (2004): more "relevant conduct." If someone had a gun, or was in a gang; if someone cooperated with the government.
- Legislature tolerates this, even embraces it to extend to juvenile sentencing.
Imagine a little bit of New Jersey in a commission state...
- Incremental development, guidelines for particular problem areas.
- Rounds initiated by prosecutor's office.
The Commission Advantage
- Clearcut legitimacy through delegation
- Informational advantages (cf. Nancy King's project) to identify next target
- Political capital
- "Abuse of discretion" standard to review application
- "Arbitrary and capricious" review of rule content
Scanning the Regulatory Horizon
- "Collaborative governmance," involving the "regulated" party
- Cf. endangered species, workplace safety, EEOC
- Iterative process
- End point: regulation leess comprehensive than for judges, but more coverage than for police.
King: Major purpose of guidelines has been to remove disparity among defendants who commit similar crimes: racial disparity, disparity among judges and districts. One thing wee've noticed less is disparity among modes of conviction. When a sentence doesn't differ because of skin color, or judge's political party, but because he chose a bench trial rather than jury trial or chose to plead guilty, sentencing guidelines doen't regulate those kind of differences. There's this gigantic disparity that isn't quantified or regulated closely.
She did a study to look not just at the plea vs. trial difference, but also the jury vs. bench sentence. One of the reasons to look at this is that a commission that would like to regulate this disparity first would need to know what the patterns are. The economic prediction is that the most expensive kind of trial would have the highest sentences.
The study covered several years in Pennsylvania, Maryland, Minnesota, Kansas and Washington, and showed fewer bench trials in states with mandatory guidelines than in ones with advisory guidelines. King put up several graphs that I can't reproduce, but that went into detail about dispositions in the various states, for various degrees of drug cases, etc.
Are we interested in regulating what goes on with sentencing given a certain charge? More bench trials and voluntary guidelines makes for strong differences in bargaining power over the sentences. In other states, they bargain over the charge, not the sentence, because there's not enough room in the mandatory guidelines to bargain over the sentence.
Guidelines are designed to replicate the average sentences given for particular crimes, but those averages include those given for guilty pleas, which adjusts the average downward from what it would be if it were based only on the sentences given after trials (with no bargaining over the sentence).
Hirshman: She said that she wants to challenge some assumptions by Wright and King, and particularly outline how prosecutors already are constrained in ways both healthy and unhealthy. We should encourage an ethos among prosecutors to seek justice, while permitting them discretion early in the process, and judges discretion later in the process. The constraints on state prosecutors that exist within New York state law serve as a check on discretion and ability to move a case in a certain direction -- with which Hirshman disagrees, and for which reason she claims that she would not run for office.
For example, in New York State, unlike the federal system, our grand jury places enormous restrictions on what a prosecutor can do; we cannot get evidence from an individual unless they are prepared to waive their automatic immunity. This makes it difficult for a grand jury prosecutor to build a case. Elaborate evidentiary rules constrain how prosecutors can prove a case.
Although Hirshman disagrees with the substance of these rules, she believes that the basic underlying theme is a good one: the test of your discretion is your ability to build cases that are strong, fair and just. In any prosecutor's office, the test of whether the prosecutor is doing a good job is whether they are enforcing the law with appropriately obtained evidence that actually captures what happened in the crime. Consider whether what goes on in the "shadows" of plea bargaining, where prosecutors are challenged by defense counsel, does produce more and better justice than we sometimes get after a full-blown trial.
Coakley: Promises to keep it short, because "a lecture is a long answer to a question nobody asked." If the system needs fixing, what are the most efficient ways to do it? Why aren't we talking about defense counsel? don't they have an obligation to ensure that the accused's rights? Michael Dukakis's loss in the 1988 presidential election due to Willie Horton is just the most high-profile instance of MA's turf battles about sentencing. Coakley's former boss says, "It's hard to get into jail in MA." She feels strongly about the need for an adversarial system with high-quality representation; case-by-case sentencing will provide better justice than sentencing guidelines.
State prosecutors are dealing with murder, armed robberies, child abuse; they lack the federal prosecutors' discretion over which charges to bring. In MA, one rule permits judges to reduce sentences if they just think the jury's decision was unfair, as in the notorious Woodward nanny-baby-shaking case. Coakley believes that our attention is better spent on improving criminal representation and ensuring that judges do their job than on guidelines to limit prosecutors' discretion.
One academic and criminal lawyer says that there is a polarization between defense counsel and assistant DAs, there is little room for bargaining. Another person points out that there are multiple forms of discretion, and Wright agrees, saying that the critical question is how much discretion the prosecutor has versus the judge.
ARE WE BETTER OFF WITH A SYSTEM OF INTERNAL REVIEW THAN WITH SENTENCING GUIDELINES?
Coakley: There is a formal review process within her office. There are several criteria for where bringing a charge has to have a nexus to what the evil that the statute is meant to punish.
Wright: Lack of enforcement and visibility. How consistently is this happening in various offices? This is a deeper question about democracy, and a hope that if people can see the rules, they'll insist on their being just.
King: Rules are overrated. Rule-based enforcement to avoid disparity means that if we depend on appellate review, we must look at the federal system, where almost all cases waive appellate review as part of the agreement.
One person asks about drug cases, and Wright says that with the density of schools, a very large number of people who aren't selling to kids still get charged under school zone laws.
Someone from the New Jersey Sentencing Commission puts in his two cents.
King says that there's a phrase called "law school charging," in which prosecutors look around for whatever they can find to put against the defendant. (The reference presumably being to students' being given a fact pattern and told to pull out every issue they can find.) Coakley says MA judges have a normative response who can exercise their discretion to counter that of prosecutors; the system has a way to correct unfairness.
Lynch stepped in to talk about the local cultures of prosecutors, judges and defense attorneys; there are different ways these are done in different places, and this may account for the patterns.
Moderator Shechtman thanks the panel and praises King's empirical work, which he says doesn't happen enough. He notes a Florida guideline where the state legislature requires that a certain charge be filed in conjunction with another; this elimination of discretion for both prosecutors and judges means that unlike New York, where such charges are left up to the prosecutors to file, there is no room to bargain over it.