Localization and Transparency in Sentencing: Reflections on the New Early Disposition Departure

A newly authorized "early disposition departure" permts federal judges to reduce the sentences of cnminal defendants who plead guilty quickly pursuant to a locally adopted early disposition program. The new departure mechanism provides the first formal mandate in the United States Sentencing Guidelines for "localization," that is, adjusting the sentences of federal defendants based on local circumstances. This paper provides a defense of localization, and suggests that localization may be reconciled with the Guidelines' overriding objective of transparency in sentencing. The early disposition departure provides a model of "transparent localization, but could be reformed so as to offer both more transparency and more localization. Enacted by Congress in 2003, the "Feeney Amendment" is undoubtedly the most important new federal sentencing statute since the Sentencing Reform Act of 1984 ("SRA"), by which Congress created the United States Sentencing Commission.2 The SRA required the Commission to implement sentencing guidelines, which dramatically curtailed judicial discretion at sentencing. Two decades later, the Feeney Amendment generated considerable controversy by further restricting judicial discretion.3 Yet, the Feeney Amendment also addressed many other aspects of federal sentencing besides judicial discretion which are only now starting to come under scrutiny This Article concerns one of the most notable, yet most neglected, provisions of the Feeney Amendment: the formal authorization of early disposition (or "fast-track") programs.4 Such programs offer special Assistant Professor, Marquette University Law School. J.D., Yale Law School, 1996; B.A., Yale College, 1991. 2 The Feeney Amendment was enacted as Section 401 of the so-called PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003) ("PROTECT Act"). For a copy of the Feeney Amendment, as enacted, see Provisions of Feeney Amendment Passed as Section 401 of PROTECT Act, 15 Fed. Sent. Rep. 358 (2003). 3 See, e.g., Letters to Congress from Sentencing Comussioners, Judicial Conference, and Chief Justice Rehnquist, 15 Fed. Sent. Rep. 341 (2003). The statutory language authorizing the implementation of early disposition programs reads: [Vol. 27:3 HeinOnline -27 Hamline L. Rev. 358 2004 LOCALIZATION IN SENTENCING sentencing benefits to defendants who plead guilty very early in the criminal litigation process; the goal is to encourage pleas that will save the government the time and expense of preparing for trial. What is most remarkable about the new "early disposition departure," though, is not the explicit sentencing discount for guilty pleas; the Sentencing Guidelines have always included such a discount (albeit in a somewhat different form).5 Rather, the truly striking aspect of the early disposition departure is that this sentencing benefit will be available in only some of the nation s ninety-four federal judicial districts. In order for the departure to be implemented in a particular district, the United States Attorney's Office ("USAO") m that district will be required to define the categones of eligible defendants in advance and to justify the need for its program based on particular local circumstances.6 The early disposition departure thus represents the first explicit authorization in the Guidelines for a process that I term "localization," that is, the adaptation of federal sentencing laws to meet local needs and values. Localization contrasts with the ideal of national uniformity in sentencing, which would require all similarly situated federal defendants to receive a similar sentence, regardless of where geographically they happen to be convicted. In my view federal sentencing law has long over-emphasized national uniformity and disregarded the very important benefits of localization. Accordingly I am heartened by the basic premise of the early disposition departure. At the same time, the new departure provision (now set forth as section 5K3.1 of the Guidelines) has been implemented in ways that do not adequately respect localization values. In developing these ideas, this Article proceeds as follows: Part I presents the theoretical case for localization. Part II considers whether localization violates the essential purpose of the Guidelines. Contrary to the views of some observers, the chief objective of the Guidelines regime is not (in) REFORM OF EXISTING PERMISSIBLE GROUNDS OF DOWNWARD DEPARTURES. Not later than 180 days after the enactment of this Act, the United States Sentencing Commission shall (2) promulgate, pursuant to section 994 of title 28, United States Code (A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures are substantially reduced; (B) a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney PROTECT Act, Pub. L. No. 108-21, 117 Stat. 675; 28 U.S.C.A. § 994 (2003). 5 See U.S. SENTENCING GUIDELINES MANUAL § 3E.lI (allowing a two-level decrease for acceptance of responsibility). 6 In order to implement an early disposition departure program, a USAO must obtain approval from the United States Attorney General. For a description of the specific cnteria that will be used in reviewing proposed early disposition programs, see Memorandum From Attorney General John Ashcroft, United States Department of Justice, to All Federal Prosecutors (Sept. 22, 2003) [hereinafter Fast-Track Memo]. The Fast-Track Memo is described below in Part III.A. 2004] HeinOnline -27 Hamline L. Rev. 359 2004