The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains
My topic is an important defect in the United States Sentencing
Guidelines: their attempt to withhold from federal prosecutors the power
to enter into sentence bargains pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure.
By “sentence bargain” I mean an
agreement, subject to court approval, that the defendant will receive a
specified sentence, or a sentence within a specified range, that is lower
than the defendant’s actual Guidelines range.
I chose this topic because it is a window into several important
issues. What is the mission of the United States Sentencing
Commission? Is it to guide judicial discretion that affects sentencing
outcomes, or does it also extend to prosecutorial discretion? The history
of the issue also raises questions about the processes by which the
Commission makes sentencing policy and shows what happens when it
makes policy badly. Finally, of course, there is the question of whether
sentence bargains are a good thing or a bad thing. I think they are a good
thing, so I think the Commission should fix a mistake it has made.