How Prosecutors Should Exercise Their Discretion Now that the Sentencing Guidelines are Advisory

Abstract

Since shortly after the implementation of the Sentencing Guidelines, the Department of Justice has sought to constrain the discretion of prosecutors at the charging, plea-bargain and sentencing phases in order to ensure the faithful application of the Guidelines. The latest manifestation of this policy is the so-called "Ashcroft Memorandum," which requires prosecutors to charge and pursue the most serious, readily provable offense and advocate a Guideline sentence in nearly all cases. Although this policy arguably made sense when the Guidelines were mandatory, it makes less sense now that they are advisory. This article argues that the Department should revisit this policy and return some limited discretion to line prosecutors, particularly at sentencing. Under an advisory Guidelines regime, the Department's current policy of strict adherence to the Guidelines takes prosecutors out of the sentencing process, perpetuates some of the failings of the mandatory Guidelines approach, and prevents line prosecutors from participating in the formulation of sentencing policy. If the Department departs from its current approach, however, the challenge is to determine how much discretion to grant prosecutors. This article suggests various substantive and procedural mechanisms to cabin the discretion exercised by line prosecutors and to ensure uniformity and transparency in sentencing.