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Disparate Outcomes and the Role of Discretion in Charging and Sentencing


Yesterday, former NFL star Lawrence Taylor was sentenced to six years' probation (no jail time) for having sex with a 16 year-old girl.  As might be expected, a big fight has broken out about this sentence.  Some believe that the court blew it by giving a celebrity a break few if any ordinary people would receive.  Others think it was a disastrous exercise of prosecutorial discretion for the DA to allow Taylor to plead to two misdemeanors, rather than insisting on a felony plea.

The defense bar is, as ever, up in arms, as you can see on Sentencing Law and Policy.  The odd thing about the defense bar  --  or one of the odd things  --  is that it's up in arms when a defendant gets what it views as an undeserved break, and equally up in arms when the defendant does not get a break, deserved or not (you know, a "compassionate society" and all that).  This is because defense lawyering is largely about being up in arms, the better to deflect attention from your client's God awful behavior.

Still, there is a serious question here, beneath the usual defense posturing and name-calling.  What are we to make of a system in which a seemingly sweetheart deal like this happens?  Who is to blame, and what can be done?

As long as the criminal justice system is constructed and run by human beings, discretion is going to be part of it. The question is not whether discretion can be eliminated in either the executive or judicial branches; the question is how it can be intelligently constrained so as to reduce unwarranted disparity in the treatment of criminals.

There is no perfect answer to that, nor is perfection a realistic goal. Improvement is, however.

Let's assume for the moment that prosecutorial discretion is a part of the disparity problem (an assumption I address momentarily). That does not mean unbridled judicial discretion is not also part of the problem, or that such discretion should not be reined in. It should be, and mandatory guidelines do a better job of it than advisory guidelines.

At one point we had mandatory federal guidelines and we can have them again, if Congress acts. I hope it will, and will be working toward that end.

The pre-Booker mandatory guidelines, I should note, provided the courts with more leeway than they are generally credited with doing, in a variety of important ways I have previously detailed (reasonably broad ranges, role in the offense adjustments, acceptance or responsibility, etc.). This is in large part because the Congress that passed the SRA of 1984 recognized that some degree of discretion is advisable, as well as unavoidable.

The same is true of prosecutorial discretion, but there are different wrinkles in cabining that sort of discretion. The Constitution itself gives the executive branch exclusive charging (and pardoning) power. Unlike the setting of the general parameters of sentences (mandatory minimum sentences, for example), in which Congress has an obvious and historically validated role, the exercise of charging discretion is not, under the Constitution, on Congress's plate, and still less is it on the judiciary's plate.

What this means is that the regulation of charging discretion will have to occur at both a micro and a macro level in a way different from a legislatively-imposed approach. At the mico level, it will have to be by internal review committees, both in the USAO's and Main Justice. When I was in the USAO for the Eastern District of Virginia, we had such committees, as well as up-the-line supervision by the more senior AUSA's.

The macro level for regulating charging decisions, and other prosecutorial decisions such as which areas to emphasize (drugs, guns, porn, fraud, etc.) is this: elections. And of course this has come to pass, as there are different priorities in the current administration from what there were in its predecessor.

Elections are not a perfect answer either, of course, because they are a blunt instrument, and because, all depending on what's going on with the country, criminal law questions, much less charging decisions specifically, are seldom voting issues. The only time I can recall when crime was a front burner issue in a Presidential election was 1972, when the crime rate had started to skyrocket to the point that Nixon was elected even though he was widely and correctly thought to be a sleaze.

So there is no perfect answer to either judicial or prosecutorial idiosyncrasy, but there are things we can do, and we ought to get cracking.


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