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


Thomas E. Gorman


University of Chicago Law School

February 1, 2010

University of Chicago Law Review, Vol. 77, p. 479, 2010

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.

Number of Pages in PDF File: 41

Keywords: Sentencing, Fast-Track Sentencing, Kimbrough, Rita, Gall, Criminal Law

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Date posted: April 28, 2009 ; Last revised: May 19, 2010

Suggested Citation

Gorman, Thomas E., Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split (February 1, 2010). University of Chicago Law Review, Vol. 77, p. 479, 2010. Available at SSRN: http://ssrn.com/abstract=1396028

Contact Information

Thomas E. Gorman (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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