Miller on the Distribution of Sentencing Authority

Professor Marc Miller has posted on SSRN the draft of his forthcoming artice in the Stanford Law Review about the allocation of sentencing authority in the federal system. Here's a link to the article, as well as the text of his abstract:

The federal sentencing system we have in 2004 would have been unimaginable to the Congress in 1984, and would not have received the broad support that the Sentencing Reform Act (SRA) received. The federal sentencing guidelines system has so changed since its original statutory conception that the system now is fundamentally different, in form and purpose, than the system Congress created in the SRA.

This article suggests the success of the federal guideline system (or other sentencing systems) be measured by the opinion of key actors. Evidence that the federal sentencing system is failing comes from the fact that most actors hate the system and that one set of actors - policy-making federal prosecutors at the Department of Justice - love it. The failure illuminated by the actors is an unwise allocation of sentencing authority.

Certain allocations of authority are dangerous or worse. Policy-making prosecutors at the United States Department of Justice love the guidelines because they dominate the federal sentencing process. The solution to this failure comes from a return to general principles of American government. The quintessential response to the threat of excess power is to design checks and balances into the system. This article highlights the need to apply these broad principles of American government to the allocation of sentencing authority.