12 Federal Sentencing Reporter 212 (2000)The federal sentencing guidelines have received sustained criticism from scholars, judges, and practitioners. Critics claim that the guidelines unwisely shift sentencing discretion from federal judges to prosecutors and probation officers; often mandate undeservedly harsh sentences; are complex, mechanistic, and bureaucratic; fail to achieve their goal of reducing sentencing disparity; and clog both district and appellate courts with litigation. Despite the attacks, some critics acknowledge that the guidelines will remain in force for the foreseeable future. While some nonetheless continue to urge abolition, others propose less ambitious reform, including enhancing the procedural protections available to criminal defendants at sentencing. Recommendations include (a) mandatory evidentiary hearings to resolve fact disputes; (b) rights to compel testimony and confront accusers; (c) application of evidentiary rules, particularly the hearsay prohibition, to the prosecution's evidence; (d) use of a standard of proof more rigorous than the "preponderance of evidence" threshold; and (e) pre-plea notice of the government's sentencing position.Critics claim that enhanced procedural protections are needed to ensure the reliability of factual findings at sentencing. Because proposed reforms typically involve providing only defendants with added protections, it appears that the reformers' objective is the reduction of improperly harsh sentences resulting from erroneous determinations of fact.In addition, some reform proponents contend that the disparity between trial, where there are significant procedural protections, and sentencing hearings, which are less formal, creates an incentive for federal prosecutors to "indict for less serious offenses which are easy to prove and then expand them in the probation office" or at the sentencing hearing itself. Presumably, an increase in procedural protections at sentencing would both reduce federal prosecutors' motivation to consciously circumvent defendants' trial rights and diminish the disparity between trial and sentencing if prosecutors nonetheless did so.After a brief description of relevant features of the guidelines, I offer several observations about these proposed measures. First, although maximizing the reliability of sentencing hearings is a legitimate objective, particularly for factual determinations that have a dramatic impact on the length of sentence, it is not self-evident that the proposed mandatory procedural protections will result in appreciably more accurate fact-finding. Second, in the absence of empirical support, the concern that federal prosecutors might circumvent trial protections is an unpersuasive rationale for restructuring the guidelines sentencing process. Third, some of the proposed reforms impose costs that may offset benefits. At several places below, I propose what may be equally effective and less costly ways to increase reliability, such as greater appellate scrutiny of lower courts' refusals to conduct evidentiary hearings. Finally, I suggest that, if mandatory procedural reforms are adopted, those who believe that they invariably will benefit defendants at sentencing may be disappointed by unintended results.
Assessing Proposals for Mandatory Procedural Protections for Sentencings under the Guidelines