McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences

Abstract

The law of unintended consequences conjectures that any legislative act will yield unanticipated, and likely undesirable, outcomes. Federal sentencing law is no exception. Federal sentencing reforms enacted in the 1980s were designed to achieve uniformity and proportionality in meting out punishments. Congress expected that the creation of a presumptive guidelines system and the frequent imposition of mandatory minimum sentencing laws would effectively operate to provide federal judges with a consistent and uniform set of rules to follow, while substantially curbing judicial discretion. The emergent sentencing system relies substantially on a mechanized system of assembly-line justice in which judges are demoted to merely terminal actors in issuing sentences. This Article posits that the system is a form of McDonaldization of society, a popular concept that recognizes the model of fast food consumerism is an ideal type of the bureaucratization of a modern rational system in America today. The federal sentencing system is intended by the reform legislation to comprise a sort of McSentencing in that the outputs — sentences — are produced through an automated process involving discrete quantifications of harm. The result is mass sentencing based on an extensive and refined rules and procedures manual, i.e., the guidelines, and relevant mandatory minimums.

As with the fast food chain, McSentencing offers such benefits as predictability, calculability, efficiency, and control. Theoretically, McSentencing should beget consistent, uniform, and normative punishments. Yet, as with any rational system, unintended consequences necessarily follow purposive legislative action. This Article explains how the federal sentencing system earns the McSentencing label and then addresses significant unanticipated consequences which have ensued. The actors in the proposed assembly-line of sentencing — the sentencing commission, prosecutors, probation officers, judges — have reacted to the reforms and to each other in ways that have biased the ability for the sentencing reforms to achieve the intended objectives. The federal sentencing system is in crisis as a result. This Article offers a unique perspective by utilizing the theoretical constructs of McDonaldization and the law of unintended consequences as orienting devices for a case study on federal sentencing law. Statistical measures derived from various government datasets supplement the analysis with empirical perspectives.

Keywords: sentencing, mcdonaldization, punishment, sentencing commission

JEL Classification: K14, K42