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“The Myth of the All-Powerful Federal Prosecutor at Sentencing”


The title of this post is the title of this new article authored by Adam M. Gershowitz in the Summer 2022 issue of the Saint John’s Law Review.  Here is its abstract:

Prosecutors are widely considered to be the most powerful actors in the criminal justice system.  And federal prosecutors are particularly feared.  While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing.  There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences.  For example, prosecutors have considerable power to bring a slew of charges that will increase the prospects of a large sentence.  Prosecutors also hold the cards in determining whether defendants should receive the benefit of substantial assistance motions for their cooperation.  The wide swath of aggravating factors in criminal statutes and the Federal Sentencing Guidelines also gives prosecutors considerable bargaining power over sentencing in plea bargaining.  Moreover, prosecutors have a strong lobbying presence to push legislatures to enact tougher sentencing regimes.  All told, there are considerable structural advantages that prosecutors hold in influencing the ultimate sentence a defendant will face.  This Article therefore does not question that prosecutors hold a lot of power with respect to sentencing.

What this Article does question however is the supposedly significant persuasive power that federal prosecutors have to influence judges at sentencing hearings.  After criminal charges have been filed, after the plea bargains ⎯ or trials ⎯ have concluded, and after the guidelines ranges have been calculated, we eventually reach the final moment in the courtroom.  Prosecutors stand in front of the judge and argue for a specific sentence that should be imposed on a defendant.  Often the sentence recommended by the prosecution varies considerably from the position advocated by the defense attorney; prosecutors sometimes base their arguments on drug quantities that are higher than were computed in the guidelines calculations, or they argue for other sentencing enhancements to apply.  Prosecutors sometimes argue strenuously against mitigating factors raised by the defense, such as poor health, family problems, or advanced age.  In short, the final event in a criminal case is a good old-fashioned, silver-tongued lawyering battle between the prosecutor and the defense attorney. 


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