Constitutional Challenges of Federal Sentencing Procedures POST – BOOKER DISPARITY and SUBSTANTIAL ASSISTANCE Krizia L. Toledo

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INTRODUCTION

Throughout the course of the Federal criminal justice system, the sentencing

process has faced notable changes. At the onset, case study is provided on select

Supreme Court cases that shaped the Federal Sentencing Guidelines (“Guidelines”).

The foregoing provides an analysis of sentencing procedures since the implementation

of the Guidelines and the Constitutional challenges faced throughout their application.

Analysis will also focus on constitutional issues stemming from sentencing disparity

caused by application of substantial assistance statutory considerations. Consideration

is given throughout to the foundational principles of sentencing, whether those

principles are met and the practices potentially impeding the meeting of those principles

in relation to constitutional guarantees.

Constitutional rights are designed to protect citizens from the deprivation of

individual liberties by limiting government’s ability to do so if and when one is faced with

a criminal charge.1 “Thus, the recognition of Constitutional rights at sentencing is

paramount.”2 The language of the Constitution provides several guaranteed rights in the

context of criminal justice. The Fifth Amendment of the Constitution states, “No person

shall be … deprived of life, liberty or property, without Due Process of Law,” 3

guaranteeing fundamentally fair proceedings in a court of law. The Sixth Amendment

guarantees, “In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury … [and] to be informed of the nature and cause of

                                                                                                               1 Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47, 49 (2011). 2 Id. 3 U.S. Const. amend. V, -Due Process. 2 Id. 3 U.S. Const. amend. V, -Due Process.  

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the accusation … .”4 The Fourteenth Amendment provides language similar to the Fifth,

guaranteeing preservation of fundamental freedoms and requiring government to give

equal protection to all citizens.5

I. Enactment of the Federal Sentencing Guidelines

The Sentencing Guidelines have provided the Federal court system with a

uniform sentencing policy governing the sentences rendered to those facing federal

criminal charges, through Congress’ enactment of the Sentencing Reform Act (“SRA”).

These guidelines are the product of the United States Sentencing Commission

(“Commission”), an independent, permanent agency of the judicial branch of the federal

government installed by Congress.6 Three principle issues motivated its enactment: (1)

Unfettered sentencing discretion bestowed federal trial judges; (2) Uncertainty of

punishments administered; and (3) Appropriate seriousness of penalties for crimes of

specific offenders.7 The Guidelines were created to promote four basic goals: (1)

Certainty in punishments rendered according to the charge(s) faced; (2) Uniformity in

punishments rendered to similarly situated defendants; (3) Proper proportionality

between considerations for decision and the decided punishment; and (4) Meeting the

purposes of sentencing. 8 The four basic purposes of criminal punishment are

                                                                                                               4 U.S. Const. amend. VI, - Jury Trials. 5 U.S. Const. amend. XIV, - Privileges and Equal Protect. 6 http://www.ussc.gov/sites/default/files/pdf/about/overview/USSC_Overview.pdf at 1. 7 Id. 8 Id.

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deterrence, incapacitation, rehabilitation, and just punishment. 9 Each is to be

considered in the determination of an individual’s sentence.

The Guidelines went into effect November 1, 1987.10 Congress made clear that

equality is a valued principle since uncertainty in sentencing was a main issue the

Commission was entrusted to address.11 Congress attributed disparity (inequality) to the

unfettered discretion afforded to judges in deciding a defendant’s sentence. To address

this issue, Guidelines were made mandatory and restricted judges by requiring them to

impose prison terms within a narrow range specified by the guidelines. From the onset,

the Guidelines have allowed judges to depart upward or downward from the mandatory

ranges in a limited set of circumstances. 12 This imposed system became highly

controversial and was particularly criticized in two major ways: (1) defendants were not

being treated as individuals making the practice unjust; and (2) guidelines provided

prosecutors with great power in determining the sentence ranges since sentences

largely depended on the charged offenses.13

II. Historical Constitutional Challenges Post Guideline Enactment

MISTRETTA - Separation of Powers The first notable constitutional challenge was brought forth in Mistretta v. United

States, 488 U.S. 361 (1989), where petitioner argued that the creation of the

Commission violated the separation of powers doctrine. In response, the court held that

the Commission, like other entities created by Congress, “do not exercise judicial power

                                                                                                               9 U.S.S.G. Ch. ONE. Pt., A. Subpt. 1 10 See supra note 6 at 2. 11 18 U.S.C. §3553(a)(2) (1993). 12 J. Kelly Strader & Sandra D. Jordan, Ch. 19: Sentencing, White Collar Crime: Cases, Materials, and Problems, Second Edition, 613 (2009). 13 Id.    

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in the constitutional sense of deciding cases and controversies, but they share the

common purpose of providing for the fair and efficient fulfillment of responsibilities that

are properly the province of the Judiciary.”14 In deciding to uphold the constitutionality of

the Commission as an agency of the judicial branch, the Court’s main inquiry was

“focused on the unique aspects of the congressional plan at issue and its practical

consequences in light of the larger concerns that underlie Article III.”15 The court then

stated, “although the Guidelines are intended to have substantive effects on public

behavior (as do the rules of procedure), … They do no more than fetter the discretion of

sentencing judges to do what they have done for generations-impose sentences within

the broad limits established by Congress.”16 Throughout the challenges posed to the

Guidelines, the separation of powers doctrine argument is not one that ever influenced

significant change.

Within the same month of the Mistretta Decision (January of 1989), the

Guidelines were implemented nationwide.17

APPRENDI - Due Process It seems as though the guideline procedure was steadily followed for about

eleven years without serious constitutional challenge, until Apprendi v. New Jersey, 530

U.S. 466 (2000). This case involved statutory consideration and not particularly the

Guidelines.18 In Apprendi, the Court address whether the due process clause requires

                                                                                                               14 488 U.S. 361, 389 (1989). 15 Id at 393. 16 Id at 396. 17 See supra note 6 at 2. 18Id at 31.  

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that a factual determination with potential to increase the maximum prison sentence by

10 years be proven beyond a reasonable doubt and decided by a jury. The Court held,

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 19 The Court also held “[I]t is unconstitutional for a

legislature to remove from the jury the assessment of facts that increase the prescribed

range of penalties to which a criminal defendant is exposed.”20 It was this case that

began to unravel the sentencing procedure created and initially implemented by the

Commission by attacking its constitutionality.

It is important to discuss the dissenting opinions, particularly Justice Breyer’s, an

original member of the Commission during its implementation.21 By analyzing the

different opinions held, one may recognize how a Justice’s interpretation of the

Constitution shapes the law. Justice Breyer based his opinion on “administrative need

and procedural compromise”, not on theory.22 Through his book, Active Liberty, Breyer

supports the utilitarian method of interpreting the Constitution, thus it is understandable

why his dissent is based on procedure rather than theory of the Constitution. His

interpretation is tailor to the need at hand. Breyer states, “There are, to put it simply, far

too many potentially relevant sentencing factors to permit submission of all (or even

many) of them to a jury.”23 Breyer relies on the principles set forth by the Commission

and recognizes that certain determinations, such as the fact in this case, have been

                                                                                                               19 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 20 Id. 21 http://www.ussc.gov/about/commissioners/former-commissioner-information. 22 Apprendi v. New Jersey, 530 U.S. 466, 556-557 (2000). 23 Id at 557.    

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traditionally made by judges, not juries; therefore, the Guidelines were made to give

judges a framework from which to work from while leaving them the ability to tailor

sentences to the individual facts surrounding the crimes of each defendant. 24

Ultimately, Justice Breyer contends,

“The Guidelines note that a sentencing system tailored to fit every conceivable wrinkle of each case can become unworkable and seriously compromise the certainty of punishment and its deterrent effect. To ask a jury to consider all, or many, such matters would do the same.”

Breyer recognizes that in “sentencing systems, proportionality, uniformity, and

administrability are all aspects of basic “fairness” that the Constitution demands,” and

contends that “a sentencing system, in which judges have discretion to find sentencing-

related factors, is a workable system and one that has long been thought consistent

with the Constitution.”25 Therefore, the Constitution does not require sentencing statutes

to be treated differently than any other.26

BLAKELY - Sixth Amendment Right to Jury Trial

Following the principles set forth in Apprendi, the Court addressed the issue of a

defendant’s sixth amendment right to jury trial more directly in Blakley v. Washington,

542 U.S. 296 (2004). Notably, this court held, “there was no distinction of the

constitutional significance between the federal sentencing guidelines and the

Washington [statutory] procedures at issue.”27

                                                                                                               24 Id at 556. 25 Id at 559. 26 Id at 559. 27http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/Supreme_Court_Cases.pdf at 31.  

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In this case, the defendant was sentenced to three years above the 53-month

statutory maximum of the standard range for the offense charged.28 The District judge

based the sentence on facts within the guilty plea and an additional factual

determination made from those facts provided (that defendant acted with deliberate

cruelty).29 Such factual finding by the judge was held to have violated the defendant’s

sixth amendment right because “the facts supporting that finding were neither admitted

by petitioner nor found by a jury.”30 The petitioner had admitted to the elements of

second degree kidnapping and was therefore on notice regarding a punishment

appropriate with that charge, not three years above that expectation.31 The Court held

that when a judge inflicts punishment outside of that inflicted by the jury verdict, the

judge exceeds his proper authority.”32 This finding would seem consistent with the

purposes of the Commission in limiting judicial discretion. The SRA stated that a judge

could impose a sentence above the statutory maximum based on a finding of

substantial and compelling reasons. 33 The Court also acknowledged that the Act

provides aggravating factors (as examples) of what would constitute justification for this

type of departure.34 This Court also relies on language of the SRA when it points out

that such substantial and compelling reasons should be founded on factual findings

made by the jury, the traditional fact finder.35 The Court clarified that relevant “statutory

                                                                                                               28 Blakley v. Washington, 542 U.S. 296 (2004). 29 Id. 30 Id at 303. 31 Id at 299. 32 Id at 303 – 304. 33 Section 9.94A. 120(2) 34 Section 9.94A.390. 35 “When a judge imposes an exceptional sentence, he must set forth findings of fact and conclusions of law supporting it.” Blakley, citing Section 9.94A.120(3).

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maximum” is the maximum that may be impose without any additional findings by the

judge.36 The Court expresses the importance of this constitutional right:

“Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”37

This case presented a significant battle of Constitutional interpretations, specifically the

intent of the Framers in granting the American people the right to a jury trial and its

effects on the judicial system.

Justice Scalia delivered the majority opinion and in discerning the Framer’s intent

stated, “the very reason the Framers put a jury-trial guarantee in the Constitution is that

they were unwilling to trust government to mark out the role of the jury.”38 Scalia is

known to interpret the Constitution by adhering to Originalist theory: “It's what did the

words mean to the people who ratified the Bill of Rights or who ratified the Constitution,"

Scalia says.39 Therefore, he argues that the sixth amendment right to jury trial does not

limit the judge’s role, but secures the role of the jury in providing the judge what is to be

considered at sentencing, particularly facts in and stemming from the plea bargain.40

Scalia further states, “Without that restriction, the jury would not exercise the control the

Framers intended.”41 Ultimately, the Court held, “By reversing the judgment below, we

are not, as the State would have it, finding determinate sentencing schemes                                                                                                                                                                                                                                                                                                                                                                       36 Id at 305 – 306. 37 Id. 38 Id at 308. 39 Justice Scalia on the record, cbs.com, August 24, 2008. 40 Blakely at 306: “[T]he common people, should have as complete a control ... in every judgment of a court of judicature as in the legislature,” citing Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789). 41 Id at 306.    

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unconstitutional,” because “This case is not about whether determinate sentencing is

constitutional, only about how it can be implemented in a way that respects the sixth

amendment.”42 The majority basically contends that the appropriate legislative action

would be to:

“retain structured schemes that attempt to punish similar conduct similarly and different conduct differently, but modifying them to conform to Apprendi's dictates,” thus, “judges would be able to depart downward from presumptive sentences upon finding that mitigating factors were present, but would not be able to depart upward unless the prosecutor charged the aggravating fact to a jury and proved it beyond a reasonable doubt.”43 This scheme seems reasonable for two reasons: 1) The effectual difference

between upward departures and downward departures, and 2) The fact that a

defendant could waive his jury trial right and still have the opportunity to argue facts

before the judge (as the majority contends).44 From what can be gathered, the majority

places importance on preserving the Constitutional right embedded in the language of

the Constitution, while the dissent defends the statutory sentencing scheme arguing

principles authorized by the constitutional separation of powers.

The dissent, including Justice Breyer, fear this decision will threaten the fairness

of the judicial system by encouraging plea bargaining, as a result of additionally created

factors the Prosecution could use as tools. 45 He also fears the elimination of a

defendant’s right to argue certain sentencing factors before the judge.46 The difference

of opinions revert back to Aprendi, and how much legislative influence should be                                                                                                                42 Id at 308. 43 Id at 333, as explained by Justice Breyer in his dissent. 44 Id at 310. 45 Id at 331. 46 Id at 331: “Considering that most criminal cases do not go to trial and resolution by plea bargaining is the norm, the rule of Apprendi, to the extent it results in a return to determinate sentencing, threatens serious unfairness.”  

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accepted in the judicial system’s sentencing determinations.47 The dissent contends that

legislative guidelines promulgated by the Commission are constitutionally appropriate,

while the majority contends that the legislative Guidelines are infringing upon the jury’s

fact-finding role. Ultimately, the dissent attack’s the majority’s decision in stating that

this conclusion as an

“extention of Apprendi to the present context will impose significant costs on a legislature's determination that a particular fact, not historically an element, warrants a higher sentence. While not a constitutional prohibition on guidelines schemes, the majority's decision today exacts a substantial constitutional tax. … Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad range all must now be charged in an indictment and submitted to a jury, simply because it is the legislature, rather than the judge, that constrains the extent to which such facts may be used to impose a sentence within a pre-existing statutory range.48 The dissent justifies their interpretation of the Framer’s intent by arguing that

“broad judicial sentencing discretion was foreign to the Framers; they were never faced

with the constitutional choice between submitting every fact that increases a sentence

to the jury or vesting the sentencing judge with broad discretionary authority to account

for differences in offenses and offenders.” Thus, the decision of the majority will have far

reaching consequences. 49

In reading these decisions, it can be quite difficult to determine which opinions

are constitutionally fair and truly in the best interest of the populist alone. Surely, it can

be said that when a person is faced with the potential deprivation of their liberty, their

                                                                                                               47  Id  at  329:  Breyer contends this decision creates, “consequences that threaten the fairness of our traditional criminal justice system; it distorts historical sentencing or criminal trial practices; and it upsets settled law on which legislatures have relied in designing punishment systems.”  48  Id  at  318.    49  Id  at  323.    

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primary concern is likely theoretical and not institutional considerations of a procedure’s

practicality. Regardless of the differing opinions, the consequences of this decision did

in fact open the floodgates for further constitutional criticism of the Guidelines.

BOOKER - Sixth Amendment Right to Jury Trial

Blakely and Apprendi focused primarily on the meaning of “statutory maximum”

and the appropriate handling of charges deemed above said maximum. These cases

challenged the Constitutionality of the Guidelines’ procedure in a subtle way directed to

interpretation of the statutory language. United States v. Booker, however, rendered the

death of determinate sentencing procedures under its sixth amendment Constitutional

challenge. The heart of the Guidelines as Congress intended was no longer. Up until

Booker, the sentencing guidelines were mandatory and judges were bound to the

calculations of the presentencing investigation report (“PSR”) so long as Congress and

the Commission had contemplated the issues. The same majority as the two previous

cases decided Booker, thus arguments of Constitutional interpretation were based on

many of the same principles of each respective side. The Booker decision addressed

two main issues: (1) the “merits” decision on the Sixth Amendment; and (2) the

“remedial” decision on how the Guidelines should be interpreted.50 Regarding the

“merits” decision, the Court in a 5-4 decision, upheld the decision in Blakely regarding

the sixth amendment application to the Guidelines and held “the Guidelines violated the

sixth amendment in cases where a defendant’s right to a jury trial is limited.”51

                                                                                                               50 See supra note 12 at 618. 51 See supra 27 at 31.

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Given determination made, the Court decided “remedial” decision was necessary

to avoid sixth amendment Constitutional violation when applying the Guidelines. In

doing so, in a “separate majority opinion by Justice Breyer, joined by Chief Justice

Rehnquist, Justice O’Connor, Justice Kennedy, and Justice Ginsberg, the Court

concluded that the two provisions of the [SRA] that have the effect of making the

Guidelines mandatory must be invalidated in order to allow the statute to operate in a

manner consistent with congressional intent.”52 The determined remedy was to excise

two provisions of the SRA [18 U.S.C.A. §§ 3553(b)(1) and 3742(e)] rendering the

Guidelines advisory.” 53 Under this modification of the SRA, a judge at sentencing would

be required only to consider the Guidelines’ suggested range rendered by a defendant’s

presentencing investigative report, and would also be able to use their discretion in

tailoring the sentence to the individual defendant by considering other statutory

concerns. The excision of 18 U.S.C.A. § 3553(b)(1) removed the imposition of

sentences within the guidelines range.54 The excision of 18 U.S.C.A. § 3742(e), cross-

referenced by §3553(b)(1), removed the appellate standard of review it set forth (de

novo).55 The majority held that “appropriate review standards may be inferred” by

several factors in addition to history of relevant appellate practice, which “imply a

practical standard of review already familiar to appellate courts: review for

“unreasonable[ness].”56 For a sentence to be unreasonable under Booker means a lack

                                                                                                               52Id at 32. 53Id. 54 United States v. Booker, 543 U.S. 220, 259 (2005). 55 Id.  56 Id at 261.

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of “strong connection between the sentence imposed and the defendant’s real

conduct.”57

In arriving to its remedy of severability, the majority noted that statutes “should

not be invalidated more than is necessary.”58 More specifically, the Court used the

following criteria, “we must retain those portions of the SRA that are: (1) Constitutionally

valid, (2) Capable of functioning independently, and (3) Consistent with Congress’ basic

objectives in enacting the statute.”59 The remainder of the SRA was found to satisfy the

Court’s Constitutional requirements, by requiring:

“judges to consider the Guidelines’ sentencing range established for ... the applicable category of offense committed by the applicable category of defendant; to [consider] the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims; to [consider] impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and [to] effectively provide the defendant with needed educational or vocational training and medical care.”60

Various dissenting opinions were filed. In regards to the “merits” decision, Justice

Breyer, joined by three others argued, “nothing in the sixth amendment forbids a

sentencing judge to determine (as judges at sentencing have traditionally determined)

the manner or way in which the offender carried out the crime of which he was

convicted.”61 Therefore, should not be a requirement for such findings to be made by a

jury.62

                                                                                                               57 Id at 246. 58 Id at 258. 59 Id at 258 – 259. 60 Id at 259 – 260.    61 Id at 326. 62 Id.

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Justices in disagreement with the “remedial” decision argued that the Court

exceeded its judicial power by overstepping powers specifically granted to Legislature.63

Justice Stevens stated, “While it is perfectly clear that Congress has ample power to

repeal these two statutory provisions if it so desires, this Court should not make that

choice on Congress’ behalf.”64 In support, dissenters deemed this severance scheme

an “innovative” approach and inconsistent with past severability cases where the

Judiciary is not bound by a statutory provision only in a particular case.65 Justice

Steven’s wrote,

“In order to justify “excising” 18 U.S.C. §§ 3553(b)(1) and 3742(e), the Court has the burden of showing that Congress would have preferred the remaining system of discretionary Sentencing Guidelines … to any available alternative, including the alternative of total invalidation, which would give Congress a clean slate on which to write an entirely new law. The Court cannot meet this burden because Congress has already considered and overwhelmingly rejected the system it enacts today.”66

Justice Steven’s also contends ”Congress revealed both an unmistakable

preference for the certainty of a binding regime and a deep suspicion of judges'

ability to reduce disparities in federal sentencing.”67

In continuing analysis of cases that follow, it is important to keep in the forefront

Congress’ principle purpose of the SRA – diminishing disparity. The majority believes

this goal “depends for its success upon judicial efforts to determine, and to base

                                                                                                               63 Id at 302-303. (Justice Stevens dissenting states, “The Court's system … frustrates Congress' principal goal in enacting the SRA, and violates the tradition of judicial restraint that has heretofore limited our power to overturn validly enacted statutes.”)

64 Id at 272.

65 Id at 283 -284. 66 Id at 292.    67  Id.    

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punishment upon, the real conduct underlying the crime of conviction.”68 The minority

responds by stating, “Congress only wanted judges to consider those characteristics

within the limits of a mandatory system,” since the “existence of sentencing disparities

can be traced directly to the unfettered discretion the law confers on those judges. …”69

Justice Breyer’s and the majority’s interpretation of Congress’ intent could

reasonably given more weight. Justice Breyer, having served on the Commission, was

present during analysis and deeply consideration of Congress’ purposes under the

SRA. Justice Breyer did not agree with the “merits” decision, however, it is not

surprising that he was the one to lead the majority in the “remedial” decision. It seems

fitting that a member of the Commission be the one to correct the Constitutional

problem in a way that did not eradicate the Guidelines altogether and did not engage in

legislative drafting.

It appears Congress and dissenting Justices on “remedial” decision believe

disparity, due to unfettered judicial discretion, cannot be properly addressed without a

mandatory system, however, the Court’s remedial solution did not resurrect total

unfettered judicial discretion. Judges are regulated under §3553(a)(4)70, which requires

consideration of the Guideline ranges, but permits enough discretion to “tailor the

sentence in light of other statutory concerns.”71

                                                                                                               68 Id at 223. 69 Id at 296. 70 “(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-- (4) the kinds of sentence and the sentencing range established for—“ (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-- (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States CIdode, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or …” 71 Id at 221.

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III. Implications of Booker – Unwarranted Disparity

The Booker decision sparked mass criticism and commentary. 72 Defense

attorneys were thrilled, Judges felt liberated and Prosecutors feared unpredictability.73

The important concern here on out is whether sentencing disparity, Congress’ major

concern, has in fact diminished Post-Booker or not. Before exploring further, it is

important to note that Congress specifically sought out to target unwarranted disparities,

not all disparity altogether. The Commission has pointed out that disagreement exists

on the definition of unwarranted disparity however; “similar treatment for similar

offenders and different treatment for different offenders is the hallmark of fair

sentencing.” 74 Additionally, “unwarranted disparity is eliminated when sentencing

decisions are based only on offense and offender characteristics related to the

seriousness of the offense, the offender’s risk of recidivism, or some other legitimate

purpose of sentencing.”75 The need to eliminate disparity is directly linked to the vital

preservation of the Constitutional guarantees of fundamental fairness, equal protection

and due process all together.

In light of this understanding, studies have shown that disparity among

sentences for similar crimes has increased somewhat after Booker. 76 Since the

Guidelines were initially implemented to eliminate disparity, it is reasonable to conclude

                                                                                                               72 See supra note 12 at 628. 73 Mark Hansen, You Say You Want a Revolution: In Booker Plus Five, There’s Been Rumbling But Hardly Rebelling, A.B.A. J., March 2010. 74Fifteen Years of Guidelines Sentencing, Chapter Three: Presentencing, Inter-Judge, and Regional Disparity (2004), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-study/chap3.pdf at 79. 75 Id at 80. 76 See supra note 12 - Letter Update 2014 at 71.  

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that unwarranted disparity issues most likely arise when sentences fall outside of the

suggested Guideline range for a particular case. According to the Commission’s most

recent data report for 2014, 50.5% of sentences fell below Guideline range and only

6.7% fell above guideline range.77 The percentage of Government sponsored below

range sentences has shown a steady increase since 2009 with the degree of sentence

time decreasing (according to the crime).78 A similar, yet slightly less increased pattern

is seen with unsponsored below range departures, most recently reported at 35.1% of

cases.79

In 2007, the Supreme Court addressed how sentencing decisions should be

reviewed in more detail. The Court held that abuse of discretion standard of review

applies to appellate review of sentencing decisions.80 Appellate review follows two

general steps: (1) ensure no significant procedural error occurred (such as failing to

consider the § 3553(a) factors, … or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range) and (2)

if decision procedurally sound, then consideration is given to the substantive

reasonableness of the sentence imposed under the abuse-of-discretion standard.81

Included under § 3553(a) factors, are the required considerations in order to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct when imposing a sentence. Additionally, under

                                                                                                               77 U.S. Sentencing Commission Preliminary Quarterly Data Report, 3rd Quarter Release Fiscal Year 2014, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf at 1. 78 Id at 12. 79 Id at 12 and 22. 80 Gall v. United States, 552 U.S. 38, 51 (2007). 81 Id.    

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§3553(e) a Judge may deliberate departing downward, below a suggested statutory

minimum, upon motion of the government, by considering a defendant’s assistance in

the investigation or prosecution of another person who has committed an offense.

Appellate standard of review is important to understand when assessing the disparities

in statutory interpretation among different and even same jurisdictions. Those

interpretations directly effect the determination of a sentence’s reasonableness.

IV. Substantial Assistance Constitutional Concerns

Numerous and notable Constitutional challenges have involved sentences where

Government sponsored substantial assistance82or §3553(e) consideration was applied

at sentencing. Constitutional challenges are based on violations of both substantive and

procedural due process rights83, separation of powers doctrine84, and equal protection

clause85 . Claims of due process violation and separation of powers doctrine are

generally based on the argument that prosecutors possess excessive discretion in

deciding whether to sponsor cooperation efforts or not, in light of the fact that decisions

not to sponsor were unreviewable.86 The courts have held prosecutorial discretion is not

excessive thus Constitutional given the historic discretion afforded prosecutors through

                                                                                                               82  Under §5k1.1 the government has the discretion to file a motion for a downward departure based on a defendant’s substantial assistance to the government in an ongoing criminal investigation or prosecution. 83 See United States v. Doe, 934 F.2d 353 (D.C. Cir 1991), United States v. Donatiu, 922 F.2d 1331 (7th Cir. 1991), United States v. Levy, 904 F.2d 1026 (6th Cir. 1990). 84 See United States v. Spillman, 924 F.2d 721 (7th Cir. 1991), United States v. Huerta, 878 F.2d 89 (2d Cir. 1989), United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989). 85 See United States v. Horn, 946 F.2d 738 (10 Cir. 1991), United States v. Musser, 856 F.2d 1484 (11th Cir. 1988). 86 See supra notes 76 and 77.  

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charging and bargaining powers.87 Following Booker, “courts have held that judges now

have the flexibility to order §5k1.1 downward departures even in the absence of a

government motion.”88 For example, the Second Circuit stated,

“In formulating a reasonable sentence a sentencing judge should take under advisement any related arguments, including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a government motion for a downward departure pursuant to §5k1.1.”89

Additionally, “the Eighth Circuit has reversed sentence because the trial court failed to

consider its post-Booker discretion to find grounds for substantial assistance departure

even in the absence of a government motion.”90 Despite the advancements made

through the decisions of various District Courts, prosecutorial discretion in this area is

still expansive, notwithstanding the fact that the decision to grant such government

motion occurs at punishment phase of a trial distinguishable from discretion exercised

at the beginning of a trial through charging and plea bargaining powers. Furthermore,

pursuant to the most recently published Guidelines manual by the Commission,

sentencing courts are still advised that “substantial weight should be given to the

government’s evaluation of the extent of the defendant’s assistance.”91

Equal Protection Clause Violation

The third general Constitutional argument of equal protection clause violation

appears to be more scarcely addressed. “Frequently there is a genuine disagreement

                                                                                                               87 Id. 88 See supra note 12 at 651. 89 United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006). 90 See supra note 12 at 651, and see United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006). 91 USSG §5k1.1, comment. (n.3)

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between the defense and the government on the level of assistance that a defendant

can provide.”92 The challenge to substantial assistance statutes is that violation occurs

“because minor participants and those of relatively low culpability are without sufficient

knowledge to be of any substantial assistance to authorities, and therefore, cannot

benefit from the departure.”93 Additionally, the ability to assist may depend on whether

the government already acquired the information a defendant has to offer, regardless of

the information’s good quality. This situation is also common for lower level defendants

in criminal schemes when the top tier defendants begin to cooperate with authorities

long before lower defendant’s are captured or surrender. When this scenario occurs, the

top tier individual has likely exhausted most of the information to be given. This problem

has been coined the “Cooperation Paradox” created when

“the highly culpable offender is the best placed to negotiate a big sentence break, and minor players, peripherally involved and with little knowledge or responsibility, have little to offer and thus can wind up with far more severe sentences than the boss.”94

The way an ordinary person envisions criminal responsibility is trumped by the

paradoxical result of less culpable defendants receiving longer sentences than more

culpable defendants.95 This paradox also frustrates the consideration of the very factor

the Court has deemed crucial to avoid unwarranted disparities – relevant conduct.

                                                                                                               92 See supra note 12 at 659. 93 Lee, Cynthia Kwei Yung, Prosecutorial Discretion, Substantial Assistance, and The Federal Sentencing Guidelines, 42 UCLA L. Rev. 105, 138 (1994). 94 Schulhofer, Stephen J., Rethinking Mandatory Minimums, 28 WAKE FOREST L. Rev. 199, (1993) 95 See supra note 86, citing supra note 87.    

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Results have rendered sentencing differences of 3 years and even 25 years

between defendants of higher and lower culpability.96 Currently, the Commission has

reported 51.4% decrease from Guidelines minimum due to §5k1.1 considerations.97

Assuming generally that lower level offenders with no opportunity for substantial

assistance considerations receive Guidelines minimum sentences at the very least, the

potential of disparity among co-defendants or defendants in related cases is grave.

Despite the disparate results, neither §5k1.1 nor §3553(e) have been deemed

unconstitutional since “the statute does not discriminate on the basis of race or a

suspect class” and therefore, it must be upheld “in the absence of persuasive evidence

that Congress had no reasonable basis for drawing the lines that it did.”98 In 2010, the

Eleventh Circuit cited Musser stating,

“Congress' desire to ferret out drug kingpins is obviously served by encouraging those with information as to the identity of kingpins to disclose such information. Hence, there is a rational relationship between the statute and Congress' purpose. Moreover, all minor figures, are treated similarly by the statute, which belies any claim of unequal treatment.”

Whether or not substantial assistant considerations are ever found

unconstitutional for violating principles of fundamental fairness and/or an

offender’s right to liberty without due process of law, “it is still important to

recognize the generated disparity since it highlights a clear hindrance rather than

                                                                                                               96 See supra note 87, n. 69, citing United States v. Brigham, 977 F.2d 317 (7th Cir. 1992), and United States v. Evans, 970 F.2d 663, 676 – 78 & n.19 (10th Cir. 1992). 97 U.S. Sentencing Commission Preliminary Quarterly Data Report, 3rd Quarter Release Fiscal Year 2014, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf at 19. 98 See supra note 86, citing United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988).    

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service to the goals of Congress.”99

The Guidelines provide two different sections that arguably might equalize

substantial assistance disparities.100 Statistical analysis provides the reality of

such potential equalization. According to the most recent data provided by the

Commission, §3B1.2 adjustment for role (1 to 4 level decrease) was applied to

6.9% of cases in fiscal year 2013.101 The Commission does not provide specific

statistics regarding application frequency of §3553(f) safety valve at this time. In

fiscal year 2013, §5k1.1 departure was applied to 12.6% of cases.102 This shows

that substantial assistance departures are applied almost twice as much as role

adjustments. The median decrease in months for a §5k1.1 application in 2013

was 50 months (about 4 years).103 By looking at the Sentencing Table applicable

in 2013 in considering available adjustments under §3B1.2, a one level decrease

from 36 to 35 (for example) could render a decrease of 20 months (about 1.6

years).104 Similarly, a 4 level decrease from 36 to 32 could render a decrease of

                                                                                                               99 See supra note 86. 100 USSG §3B1.2 (Mitigating Role for minimal or minor participation), and USSG §3553(f)(1) – (5)(Safety Valve provision for drug related offenses applied if subsections to (f) are met, including no leading role). 101 Chapter 3 Adjustments - Guideline Calculation Based, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/guideline-applicationfrequencies/2013/Chapter_Three_Adjustments_Guideline_Calculation_Based.pdf at 2. 102 U.S. Sentencing Commission Preliminary Quarterly Data Report - Fiscal Year 2013, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC_2013_Quarter_Report_Final.pdf at 1. 103 Id at 19. 104 Sentencing Table, http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2013/manual-pdf/Sentencing_Table.pdf.  

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67 months (about 5.6 years).105 The higher the offense level is the greater

difference in suggested months for sentencing. Ultimately, these are just

hypothetical ballpark figures, but the difference in percentage of applicability

between the two is certainly alarming enough to question the fundamental

fairness of the rendered sentences with these considerations. It appears the

rational relationship between statute and Congress’ purpose in this context

warrants these disparities. Case law shows that courts are unwilling to consider

this disparate impact in deciding a sentence. 106 Substantial assistance

considerations also appear to carry greater weight than the deterrence purpose

of sentencing.

Proposed Change

Given the necessity of vital informant rendered information through

substantial assistance, a proper solution would allow such assistance but would

also address the wide range of disparity caused at sentencing. Many in the legal

community have presented suggested solutions. In considering the purposes

Congress sought to address through the enactment of the Commission,

particularly limiting and structuring the discretion exercised by Judges, a level

adjustment system seems to be the most fitting solution. This disparity could be

“better controlled if a set 3 to 5 level discount were implemented to restrict the

                                                                                                               105 Id. 106 See United States v. Cruz-Mejias, 396 Fed.Appx.593 (11th Cir. 2010) (Limiting downward departure sentence to only those defendants who could provide substantial assistance did not violate equal protection rights of defendant).

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extent of the departures awarded.”107 This application would function the same

way as other structured aspects of the sentencing calculations, such as the

previously discussed role adjustment (allowing a 1 - 4 level reduction based on

defined requirements for each). It would also continue to allow individualized

assessment of each offender through fettered judicial discretion. The disparity in

the frequency in which it is applied would still exist as a result of the compromise

made in retaining the possibility of assistance. Despite this frequency, this

system could structure departures in a way that preserves fundamental fairness

and diminishes the distasteful weight given to cooperation superior to the

fundamental sentencing purpose of deterrence.

CONCLUSION

A reasonable person would not expect complete elimination of disparity in

sentencing, whether it be warranted or unwarranted. Judges are humans and will

inevitably exercise individual philosophies on punishment, involving any given

amount of influence for any particular purpose of sentencing. Congress’ utopian

ideologies for sentencing procedures seem impractical at its full extent. However,

after in depth consideration of this legal arena, it appears the Commissions

Guidelines, coupled with the elimination of the mandatory application provision

provide a satisfactory and generally equitable system. With that being said,

Congress (through frequent studies by the Commission) should not become

complacent. It is their Constitutional granted power and duty to see that the law it

                                                                                                               107 Lee, Cynthia K.Y., The Sentencing Court’s Discretion to Depart Downward in Recognition of a Defendant’s Substantial Assistance, 23 Ind. L. Rev. 681, 684 - 685 (1990).    

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creates runs parallel and in accordance with the Peoples’ fundamental

Constitutional rights and guarantees. There is always room for improvement.