A Sentencing Commission for the Administrative State?

Since the 1980s, oversight of punishment in the federal criminal system has been centralized. A single body, the Sentencing Commission, regulates criminal punishment through the Sentencing Guidelines. The Guidelines are designed to bring consistency and transparency to criminal punishment, but come with the inevitable cost of a loss of case-by-case judicial discretion. In contrast, punishment in the federal administrative state is almost completely decentralized. No single body oversees agency punishment practices. The administrative model makes the opposite choice of the criminal model. It favors individualized punishment determinations over the benefits of consistency and transparency. In this Essay, I consider the arguments in favor of a sentencing commission for the administrative state. I conclude that although the advantages of centralized punishment are real, they are not large enough to support centralizing the administrative civil penalty power into a single body. Administrative enforcement involves a level of specialized knowledge and integration with other agency regulatory choices that is absent in the criminal context. However, while a top-down approach enforcing penalty consistency and transparency would be a mistake, agencies can and should work from the bottom up to develop their own penalty guidelines and coordinate their penalty practices with parallel regulators