NCJ Number
160283
Journal
Wisconsin Law Review Volume: 1993 Issue: 1 Dated: (1993) Pages: 187-230
Date Published
1993
Length
44 pages
Annotation
The Federal sentencing guidelines fail to eliminate sentencing disparity because they do not take into account the impact of the use of prosecutorial and police discretion by manipulating investigations and "sting" operations.
Abstract
Congress enacted the Sentencing Reform Act of 1984 to eliminate sentencing disparities among similarly situated defendants and to move the criminal justice system's goals from rehabilitation to retribution, deterrence, and incapacitation. Determining that these goals could be met only by disabling the judiciary's discretionary sentencing power, Congress established the Federal Sentencing Guidelines. Although the new system achieves the shift to retribution, deterrence, and incapacitation, it does so without eliminating sentencing disparities. By restricting judges and instituting a harm-based rather than a culpability-based sentencing system, the guidelines encourage and enable prosecutors and law enforcement officials to influence sentencing by manipulating investigations and "sting" operations. Such manipulations result in hidden disparities that cannot be prevented by judges. Some judicial discretion should be restored, so judges could limit the disparate effects by invoking "sentencing entrapment," extending the outrageous-government- conduct defense to sentencing, or departing from the guidelines when prosecutors or enforcement agents unduly influence sentencing. With increased control over sentencing, judges can ensure that offenders receive sentences commensurate with their culpability. 230 footnotes