By Richard A. Bierschbach & Stephanos Bibas. Full text here.
As the real policymakers of criminal justice, prosecutors and other criminal justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved. This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect. Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input. But criminal justice has no comparable mechanisms for public participation.
We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight. Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies. It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts. Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.