Cite as: 520 U. S. 751 (1997)
Breyer, J., dissenting
different ways. The Commission concluded that its interpretation avoids "unwarranted disparity associated with variations in the exercise of prosecut[orial] discretion," 59 Fed. Reg. 23608, 23609 (1994), in furtherance of the overriding congressional objective. 28 U. S. C. § 991(b)(1)(B).
The majority counters that "any such discretion would be similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect." Ante, at 762. But this reply overlooks the fact that the Guidelines themselves, by basing punishments primarily upon the actual behavior that underlies an offense, are written to diminish the impact of such prosecutorial discretion. See USSG § 1B1.3. The Commission recognized that the problem is one of diminishing, rather than aggravating, sentencing disparity among similarly situated defendants. And the Commission's interpretation finds support in that basic objective.
As a matter of policy, the Commission was free to consider the practical impact of the competing interpretations—in terms both of their comparative effectiveness in furthering the basic goals of punishment (deterrence, incapacitation, just deserts, rehabilitation), 18 U. S. C. § 3553(a); 28 U. S. C. § 994(a)(2); USSG ch. 1, pt. A3, and their comparative costs in terms of real resources, 28 U. S. C. § 994(g). And it might have thought that its present interpretation better balanced these objectives.
Consider an example: The ordinary (non-Career Offender) Guideline sentence, applicable to a three-time offender, for possession with intent to distribute a single dose of cocaine is 18 months; for possession with intent to distribute 400 grams it is 6 years. The statutory first-offender maximum is 20 years. The recidivist maximum is 30 years. As a matter of policy, the Commission might have thought that an increase from 18 months (or 6 years) to 20 real-time years adequately served basic punishment objectives (as well as Congress' specific instruction to assure "substantial prison
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