Prosecutors as Punishment Theorists: Seeking Sentencing Justice

Abstract

Federal criminal law in the last 100 years has seen three distinct sentencing eras. Most surveys of these three sentencing eras have focused on the changing power of the judge: from unfettered discretion before the Sentencing Guidelines, to severely restricted discretion under the mandatory guidelines, to our current system of guided discretion under United States v. Booker. This article, however, focuses on the role of the prosecutor, which has changed dramatically over time. In the era of individualized sentencing, prosecutors typically either abdicated sentencing responsibility or made non-binding recommendations based on individualization principles. There was little reason for prosecutors to become more involved, given the breadth of judicial discretion and the absence of appellate review. During the mandatory guidelines era, prosecutors became much more active at sentencing, advocating for particular guidelines ranges and appealing sentences that departed from those ranges. Our current system of advisory guidelines combines elements of the first two eras. Prosecutors must still compute and advocate for particular guidelines calculations, but now they must also argue - both at sentencing and on appeal - that the sentences they recommend are reasonable. Put differently, prosecutors now must justify the sentences they seek by reference to the traditional principles of punishment.

This article examines prosecutors' new role as punishment theorists. In particular, the article argues that by forcing prosecutors to justify their sentences, Booker has caused an unintended, but potentially important, shift in prosecutorial engagement with sentencing justice. The article then examines whether this new engagement with sentencing justice can improve other aspects of prosecutorial discretion. In particular, the article argues that the principles of sentencing justice being developed by federal courts in the wake of Booker can inform not just prosecutorial sentencing arguments, but also prosecutorial charging decisions. In the end, the article proposes a solution the persistent challenge of mandatory minimum sentences: prosecutors should use Booker's reasonableness standard in determining whether to file charges that will result in a mandatory sentence above the advisory guidelines range.