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December 5, 2005

More proof that prosecutorial discretion produces the biggest sentencing disparities

I might need to stop reading federal circuit opinions, because lately they are driving me batty: if it's not sloppy post-Booker legal work (as in recent opinions from the 2d and 7th and 8th Circuits), then it's the deeper potential injustices in the sentencing system evidenced by cases like US v. Burke, No. 04-60973 (5th Cir. Dec. 2, 2005) (available here). 

Burke rejects various challenges to a 96-month sentencing following a plea to "attempt to commit extortion under color of official right."  My dander is up because the defendant apparently was involved in a massive cocaine conspiracy (involving 350 kilograms) and used his position as a city alderman "to assist the police escort of drugs through his city."  Nevertheless, unlike the defendant in the recent Cannon case, who received a mandatory life sentence for a relatively minor drug offense, the defendant in Burke managed to work out "a plea agreement providing that the court would not sentence Burke to more than ten years' imprisonment."

Of course, I am sure reasonable(?) factors influenced the federal prosecutor in Burke to cut a deal capping the defendant's sentence, and I do not like to second-guess discretionary judgments without full information.  The broader point, however, is that these sorts of discretionary judgments by prosecutors are typically hidden from view and not subject to review (at least publically).  And yet, Justice Department officials and some members of Congress always seem eager to second-guess discretionary judgments by sentencing judges, even though these decision are more open and subject to review by appellate courts.  Cases like Burke highlight why, as the US Sentencing Commission suggested in its 15-year report, plea bargaining and other forms of prosecutorial discretion likely introduce more disparity into the federal sentencing system than the exercise of judicial discretion ever could.

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UPDATE: To further expand the disparity discussion around Burke, also consider this post at TalkLeft discussing a state case from Florida in which a teenager apparently received a 10-year sentence for stealing a six-pack of beer.

December 5, 2005 at 04:46 PM | Permalink


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