From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing

29 Pages Posted: 28 Dec 2003

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law


The Sixth Amendment guarantees the right of a criminal defendant to have the assistance of counsel, and much has been said and written about the fundamental need, and the frequent failure, to ensure adequate counsel for all persons accused of crimes. However, far too little attention has been paid to the role and impact of defense counsel in the ultimate conclusion of the criminal process - sentencing. Especially since the enactment of the Federal Sentencing Guidelines, considerable scholarly attention has been given to the roles at sentencing of judges, prosecutors, and even probation officers. But still lacking in the legal literature has been assessments of defense counsel's effect on sentencing outcomes or explorations of whether differences in the quality of defense representation may be thwarting the goals of sentencing reform. This Article starts the project of closely examining the impact of defense counsel on sentencing outcomes.

Part I notes the lack of attention given to defense counsel's role and impact in sentencing, and explains the importance of exploring the effect differences in defense counsel may have on sentencing outcomes. Part II utilizes the Federal Sentencing Guidelines as a focal point for discussing the array of challenges that modern sentencing schemes create for defense counsel. This Part highlights how the sheer bulk of sentencing law created by the Guidelines heightens the importance of sophisticated legal knowledge and skilled advocacy, while also increasing the risk of mistakes throughout the processes of plea bargaining, sentence calculations, and final sentence determinations. To best represent clients, defense lawyers have to tailor effectively their negotiations, mitigation arguments, and even repackage work relationships into the Guidelines context. As revealed throughout Part II, prosecutors, probation officers, and judges have many official and unofficial opportunities to make discretionary decisions that directly impact federal sentencing outcomes, and these decisions can be greatly influenced by the efforts of defense counsel at every stage of the federal sentencing process. As a result, from the very beginning of representation in a Guidelines world, the caliber and performance of defense counsel can have a dramatic impact on both the broad outline and detailed particulars of the ultimate sentencing outcome. These important insights in turn suggests that poor defense representation or differences in the quality of defense counsel may create considerable risks of disparities and other unfair sentencing outcomes under the Guidelines.

Part III maps out the challenges for sentencing reformers in trying to fully assess and remedy these concerns by noting the complex realities that will necessarily attend efforts to measure and minimize the potential for differences in defense counsel to impact federal sentencing outcomes. The article urges researchers, and in particular the U.S. Sentencing Commission, to undertake empirical studies in order to try to gauge the impact of defense counsel on the sentencing process. In sketching out an agenda for future research and potential reforms, this Article closes with a call to action for all policy-makers and academics concerned with sentencing systems to focus needed attention on defense counsel's role and impact on sentencing outcomes.

JEL Classification: K14, K42, K4

Suggested Citation

Berman, Douglas A., From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing. Available at SSRN:

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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