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November 29, 2004

Great WSJ article on cooperation disparity

I have been praising the press a lot lately (examples here and here) for its coverage of various sentencing law and policy issues, and today the Wall Street Journal vindicates my extra praise for its continuing coverage of federal sentencing realities.  A front-page WSJ article by Laurie Cohen, entitled "Split Decisions: Federal Cases Show Big Gap in Reward For Cooperation," provides the most complete and effective media examination of federal cooperation practices (and the disparities they create) that I have seen.  (Earlier powerful WSJ articles can be found here and here and here.)

Wsj_5k This article (available to subscribers) focuses particularly on the authority of federal prosecutors to reward, through "substantial assistance" letters to the judge, significant sentencing reductions for cooperation (that is, for being a snitch, as PBS has put it).  And the WSJ article provides both anecdotal and empirical evidence to support a wide-spread concern, articulated by one defense attorney in the article, that sentencing reductions for cooperating often means that the "big fish gets off and the little fish gets eaten."  As the article explains:

[T]he procedure for deciding who gets these valuable letters is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know. U.S. attorneys in different parts of the country vary widely in how they reward cooperation, even though they're all part of the same federal justice system. Studies suggest blacks and Hispanics are less likely to get credit than whites, perhaps partly because they are more mistrustful of authorities. And once prosecutors decide that cooperation is insufficient for a letter, their word is usually final -- defendants can't appeal the decision to a judge....

Disparities in one aspect of cooperation letters have attracted the attention of the Department of Justice. Robert McCampbell, the U.S. attorney in Oklahoma City and head of a sentencing subcommittee advising the attorney general, says the department is worried that while some prosecutors have strictly followed the requirements for giving the letters, others seem to hand them out more liberally. Following a September 2003 memo by Attorney General John Ashcroft to all federal prosecutors, Mr. McCampbell says the department's message is now: "Only use substantial assistance departures where cooperation is truly substantial."

And last week, a report by the U.S. Sentencing Commission reviewing the 15-year record of the guidelines warned that "unwarranted disparity" in cooperation letters may play a role in increasing sentence variation.

November 29, 2004 at 11:09 AM | Permalink


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I am a law student working in a criminal defense clinic. Next week, we are arguing before the 2nd Circuit on a claim that mandatory minimum sentences are an unconstitutional violation of the separation of powers clause. I was wondering if anyone knows of a source that provides the percentage of cases where there is a proffer, versus the number of cases where a 5k1 is actually filed?

Posted by: SJG | Oct 23, 2006 12:34:58 PM

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