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May 20, 2010

"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"

The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN).  This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:

Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights.  Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them.  This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.

Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough.  In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.”  Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed.  The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence.  The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.

This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act.  The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.

An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track.  The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing.  For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities.  These goals are also what drove Congress to authorize a limited form of fast-track sentencing.

This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative.  It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.

May 20, 2010 at 01:49 PM | Permalink


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The Government has recently conceded on this issue. The Supreme Court, however, has refused to grant cert on the issue, despite the circuit split.

Posted by: FPD | May 20, 2010 3:30:04 PM

In what district (or Circuit) has the government conceded the issue, if you don't mind saying? It's a frequently litigated issue where I practice and the government vigorously opposes it. I would love to be able to tell a sentencing judge where it's been conceded elsewhere.

Posted by: DEJ | May 20, 2010 4:13:12 PM

The Government has conceded it in at least two cert. petition before the Supreme Court. I know in the (relatively) recent Ninth Circuit case on this issue, they conceded it when it went up to the Court. The Court denied cert. anyway. You know, because a sentencing issue that affects thousands of lives a year isn't that important. These 8th amendment claims, however, that affect tens of lives a year . . . . Those are so important that cert should be granted on two of these cases.

Posted by: FPD | May 20, 2010 5:39:24 PM

The Gov't conceded that the fast-track policy statement is not mandatory. This is similar to the concession they made in Funk, and then in Vazquez and Corner. (btw: those two gov't filings are cited in the Comment and are available on Westlaw).

But those filings by the SG still insist that district courts cannot consider the fast-track disparity. You can read the Comment for more on that, but they push two arguments principally: (1) the disparity was "warranted" by Congress in the PROTECT Act and therefore cannot be considered to create and "unwarranted disparity" under § 3553(a)(6), and (2) there is a separation of powers problem if the judiciary interferes with the USAO's prosecutorial discretion to offer these plea deals selectively.

IMRO the second argument is easily rebutted by the many cases in which district courts mess with prosecutorial discretion (co-defendant disparity, etc). I focus my Comment on the first argument, which I think is much stronger.

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