“Fast-Track” Goes National for Illegal Reentry; Now How About Covering More Offenses?

In a memo by Deputy Attorney General James Cole earlier this week, the Department of Justice announced an important policy change on “fast-track” plea bargaining.  Fast-track programs were developed by the Mexican border districts in the 1990’s in order to process a growing volume of illegal reentry cases quickly.  By agreeing to an early plea deal and waiving practically every imaginable procedural right, defendants were given large sentencing breaks.  These programs were controversial for a number of reasons, not the least of which was the fact that reentry defendants were getting dramatically different sentences depending on the district where they happened to be apprehended, in contravention of the sentencing guidelines’ emphasis on uniformity across the federal system.  Despite these concerns, Congress chose to legitimize fast track in 2003 in the PROTECT Act, which permitted each individual U.S. Attorney’s Office to decide for itself whether to offer fast track, subject to some central (and ill-defined) DOJ supervision.  Fast-track spread rapidly beyond the border districts, but was not embraced everywhere, and the disparity objections have only grown louder.

In order to address these objections (and probably also to reduce the burden of litigating requests by defendants in non-fast-track districts to be awarded fast-track benefits as a matter of the sentencing judge’s discretion), the Cole Memo now mandates fast-track opportunities for illegal reentrants in all districts.

At the outset, it should be noted that the new policy moves in the direction of national uniformity, but still preserves substantial discretion for individual U.S. Attorneys to decide how fast track will be implemented in their districts.  For instance, the Cole Memo states,

The United States Attorney retains the discretion to limit or deny a defendant’s participation in a fast-track program based on—

(1) The defendant’s prior violent felony convictions (including murder, kidnapping, voluntary manslaughter, forcible sex offenses, child-sex offenses, drug trafficking, firearms offenses, or convictions which otherwise reflect a history of serious violent crime);

(2) The defendant’s number of prior deportations, prior convictions for illegal reentry under 8 U.S.C. § 1326, prior convictions for other immigration-related offenses, or prior participation in a fast-track program;

(3) If the defendant is part of an independent federal criminal investigation, or if he or she is under any form of court or correctional supervision; or

(4) With supervisory approval, circumstances at the time of the defendant’s arrest or any other aggravating factors identified by the United States Attorney.

The final category (“other aggravating circumstances”) seems to offer practically unlimited discretion for U.S. Attorneys to constrict the reach of fast track.

The Cole Memo also leaves U.S. Attorneys free to decide whether to require waiver of a full pre-sentence investigation and entry into a sentence agreement under Rule 11(c)(1)(C).  Indeed, although the Memo says that the government “shall” move for a four-level departure “for all defendants, except those with a criminal history category VI or with at least one felony conviction for a serious violent offense,” it appears that the authority to insist on an 11(c)(1)(C) agreement effectively leaves each Office with the ability to determine for itself what the sentences will be in fast-track cases.

As an aside, one might well question the fairness of limiting the category VI and “serious violent felony” defendants to a maximum departure of two levels.  Since their guidelines sentences already take into account their criminal history, to limit their eligibility for fast track on the basis of criminal history seems a form of double-counting.

In any event, the Cole Memo seems to me a welcome policy change.  The illegal reentry guideline is widely recognized as one whose severity has been jacked up based on political considerations rather than sound sentencing policy.  By my lights, giving a greater number of illegal reentrants access to a large sentencing break can only be a good thing.

To be sure, I’ve also argued on a number of occasions that the federal sentencing system should provide more room for “localization” — for the adaption of national norms to local needs and values.  For that reason, I wrote positively of Congress’s implicit endorsement of local variation when it legitimized fast track.  See “Localization and Transparency in Sentencing: Reflections on the New Early Disposition Departure,” 27 HAMLINE L. REV. 358 (2004).  For the same reason, I now feel a slight twinge of misgiving that the Cole Memo is backing away from localization.

But my view all along has been that localization is most appropriate for crimes whose impact is most essentially local and that could just as well be prosecuted in state court; “national” crimes should be punished in a nationally uniform fashion.  Reentry strikes me as a crime in more of the national vein.

So how about now expanding fast-track on a district-by-district basis in order to take advantage of the localization it offers with respect to other crimes besides illegal reentry?  The original premise of fast track was that it was only for high-volume crimes, but the Cole Memo now formally expands fast-track for illegal reentry to districts that have few reentry cases, so high volume can no longer be considered a necessary condition for giving a category of cases fast-track treatment.

Let me suggest one concrete example of where this may be appropriate.  Felon in possession cases strike me as generally of local concern, and we know that views about the blameworthiness of gun possession vary tremendously from one region of the country to another.  Offering fast-track benefits in these cases in districts with strong pro-gun attitudes would thus help to bring federal sentences in greater conformity to local values.  I think much the same argument could be made with respect to cases of simple possession of drugs, and perhaps also to retail-level drug dealing.