Disparities and Discretion in Fast-Track Sentencing

Since the Supreme Court held in United States v. Booker that the United States Sentencing Guidelines are advisory rather than mandatory,1 the government and circuit courts have repeatedly attempted to carve out areas in which the Guidelines remain effectively mandatory, and the Court has repeatedly rebuffed these attempts and reasserted the advisory nature of the Guidelines.2 Whether sentencing judges may grant below-Guidelines sentences to correct for what are commonly known as “fasttrack” disparities is the next frontier of the post-Booker sentencing debate. In certain select federal districts (but only in those districts), the Department of Justice (DOJ) operates “fast-track” sentencing programs through which it grants deeply below-Guidelines sentences to illegal reentry defendants in exchange for quick guilty pleas.3 For example, if a defendant is caught in Oregon after returning to the United States after deportation, he is eligible for a thirtymonth sentence because of that district’s fast-track program; if that same defendant is caught in Illinois, he may face a Guidelines range of seventy-seven to ninety-six months because such a program does not exist in any Illinois district.4 The central questions are whether these disparities are “unwarranted disparities among defendants with similar records who have been found guilty of similar conduct” under 18 U.S.C. § 3553(a)(6), and whether sentencing judges have discretion to grant below-Guidelines sentences to illegal reentry defendants in districts without fast-track programs to mitigate these disparities. This Issue explores the fast-track disparity debate, which raises myriad questions that lie at the heart of modern debates over federal sentencing after Booker: Who determines whether disparities are “warranted”: prosecutors, Congress, or sentencing courts? Can an advisory guideline be functionally mandatory in certain respects? Can judicial discretion trump prosecutorial discretion in the sentencing arena? There is, of course, a central irony in the fast-track disparity debate: while the Guidelines’ raison d’etre was to eliminate unwarranted disparities,5 and while the DOJ has often warned that allowing greater discretion to sentencing courts risks greater sentencing disparity,6 the fast-track policy statement and the DOJ programs it condones create unmistakable and arguably unwarranted disparities among defendants based solely on the location of arrest. Moreover, available evidence suggests that fast-track disparities are widespread: although fast-track programs operate in a small minority of the country’s ninety-four federal districts, the vast majority of illegal reentry defendants appear to receive lenient fast-track sentences rather than Guidelines sentences.7 The purpose of this Issue is to describe the history of fast-track sentencing, illuminate the current circuit split over whether judges have discretion to mitigate fast-track disparities, and reprint difficult-to-obtain primary sources that are relevant to ongoing fast-track litigation. These Guest Editor’s Observations will briefly review the history of fast-track disparity litigation and will discuss the current circuit split over whether sentencing judges have discretion to find that the fast-track disparity is unwarranted under § 3553(a)(6) and to grant lower sentences to illegal reentry defendants in non-fasttrack districts based on this finding. These Observations will then articulate the arguments in favor of sentencing court discretion. And finally, these Observations will explain the essential role the primary materials that make up the bulk of this Issue play in the litigation that continues in the district courts and in many circuits.