Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation

Abstract:     
This Article examines potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter. The practical objections to prosecutorial guidelines issuing from a sentencing commission emphasize two problems: the linguistic impossibility of creating meaningful guidelines and the political impossibility of promulgating them. But experience in the states casts doubt on each of these objections. Some states have codified preexisting prosecutor guidelines, generated by prosecutors themselves, while other states have prompted prosecutors to develop their own internal guidance.

Prompted self-regulation of prosecutors will prove most effective when the ambitions for guidelines are incremental and when the use of those guidelines is monitored from the outside. Working in tandem, commissions and courts can gradually shift back to prosecutors some of the regulatory burdens of producing uniform sentences, leaving more room for judges to dispense mercy. To reinforce this incremental development, the most important value that prosecutor guidelines should embody is transparency for defendants and for voters.

Number of Pages in PDF File: 44

Keywords: Criminal Sentencing, Sentencing Commissions, Prosecutors, Prosecutor Guidelines, Sentencing Guidelines

JEL Classification: K14, K40

Accepted Paper Series