Prosecutorial Discretion and Real Offense Sentencing Under the Federal Sentencing Guidelines: An Analysis of Relevant Conduct

Keith A. Wilmot, University of Nebraska at Omaha

The adoption of the Sentencing Reform Act of 1984 and the promulgation of the federal sentencing guidelines in 1987 dramatically altered the federal sentencing process. The primary objective of the guidelines is to prescribe like sentences for like defendants convicted of the same offense. The federal sentencing guidelines are based on real offense sentencing, which links "relevant conduct" or actual offense behavior to the sentencing process. In essence, the sentencing guidelines were adopted to reduce judicial discretion and unwarranted sentence disparity. Likewise, the real offense sentencing system, as opposed to the charge offense system, was adopted to reduce prosecutorial discretion and prevent circumvention of the guidelines through charging and plea bargaining decisions. Current research suggests, however, that discretion has shifted from the judge to the prosecutor. More importantly, although the federal sentencing guidelines narrowed the discretionary powers of sentencing judges, they did not restrict prosecutorial discretion. As a result, the discretion of the prosecutor combined with the effects of real offense sentencing has the potential to produce disparity. To date, there is no empirical research that investigates the effect of prosecutorial decisions and relevant conduct on sentence outcomes; therefore this study represents a first attempt to address this issue. This study analyzes the indictment stage where the charging decisions by the federal prosecutor in conjunction with relevant conduct are first conceived. This research reveals that the legal variable - the number of counts within an indictment - does influence the length of sentence, the magnitude of the discount for downward departures, and the ratio of the difference between the presumptive sentence and the sentence discount. In contrast, the number of counts within an indictment has no effect on the likelihood of who receives either a downward departure or a substantial assistance departure. Thus, the number of counts within an indictment has an indirect effect on sentence severity through its effect on relevant conduct and real offense sentencing.

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Updated 05/20/2006