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January 13, 2005

What of substantial assistance?

Professor Frank Bowman and this morning's great Wall Street Journal article (available here with subscription) get extra points for flagging the way a change to advisory guidelines could impact the operation of 5K1.1 and the authority prosecutors used to have to be the sole determinator of whether defendants could receive a mitigated sentence based on cooperating in the investigation and prosecution of others:

[Professor Bowman] pointed out that in many cases, prosecutors persuade defendants to plead guilty and cooperate by promising to reward them for "substantial assistance." Under the guidelines, defendants who receive such recognition are exempt from the guidelines' strict provisions. Now that the guidelines are only advisory, defendants may see less need to cooperate. "The Department of Justice has just lost all of its bargaining leverage" with defendants, asserts Prof. Bowman.

I would be especially eager to see comments from prosecutors and defense attorneys about how Booker changes the dynamics around cooperation.

January 13, 2005 at 11:02 AM | Permalink


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I disagree with Prof. Bowman. You still need a govt motion to break through the minimum mandatories. Also, it might encourage more cooperation b/c now the defendant can ask for a 5K departure without a govt motion at sentencing (although you would still need the govt to file a rule 35 motion). A defense attorney, like myself, can argue directly to the court for a departure below the "advisory" guidelines based on my client's efforts to cooperate - even if unsucessful! (As opposed to the "close but no cigar" standard in our district - SDFL) Therefore, especially in the large scale drug cases I handle, cooperation remains a powerful tool for the defense and the govt.

Posted by: Ruben Oliva | Jan 13, 2005 11:16:40 AM

Agreed the Booker decision will have no effect where a government motion is needed to pierce a mandatory minimum. However, in other cases, defendants will be able to urge the court to consider the assistance they've provided--even where the government doesn't concede that it's substantial.

Posted by: Marc Shepherd | Jan 13, 2005 12:27:37 PM

I agree with Mr. Oliva regarding _cooperation_ -- there's still strong incentives to cooperate. In addition there is the possibility of dropping charges with higher statutory maxima ("limited" charge bargaining, not gone regardless of how much Breyer wants "real offense" sentencing) and Rule 11(c)(1)(C) pleas, that courts might be more willing to entertain for a stool pigeon (wow, I always wanted to use that term).

But the other question is whether defendants will be quite as willing to _plead guilty_ right away.... Indeed, there's no automatic 2 level acceptance of responsibility credit (with an almost guaranteed 3d level if you keep your nose clean), so what can a defense lawyer say? "Well, we'll mention this to the judge and, as before, she will probably take it into account when sentencing you... judges don't like their dockets clogged or time wasted, so you'll get a break." Maybe defendants will go for that, but I would want something more definite.

The real difference, though, will be numbers of pleas before different judges. Once a judge makes it known that she believes that defendants should not be 'penalized' for going to trial, then the major reason to plead (reduction in sentence) vanishes. Uh-oh.

Posted by: District Clerk Battling Blakely | Jan 13, 2005 12:34:53 PM

I'm not sure where to post this, but what do you think this does in terms of plea agreements restricting or eliminating entirely the defendant's ability to make downward departure motions?

Posted by: Eric C. | Jan 13, 2005 12:36:29 PM

Of course the Justice Dept is unhappy that they don't have as much "bargaining power" (coercive and unjust power) to use threats of bogus charges (judges forced to take as "fact" without proof on the hearsay testimony of the prosecutor for sentencing purposes). Their prosecutors were lazily used to getting away with threats of charging defendants with bogus charges to force guilty pleas. In more recent years, prosecutors did not even have to threaten anymore. The defense counsel did the threatening by informing the defendant of the reality of what would happen if they did not "voluntarily" accept the plea offer. Either take it and lose part of your life or leave it and lose your entire life since the lies would win anyway. Not one intelligent person would risk a trial when you could not win with the truth no matter what you did since most counsel will not take the time it requires to do a competent job of defense without a huge budget. Lack of money insures a guilty verdict in the majority of the cases. This is a ruthless capitalist society which puts monetary value on a person's freedom. If you can't buy it, you can't have it.

Defendants hopefully now have due process rights to challenge bogus charges at the beginning and throughout the plea process or trial without the horrific fear of getting unproven charges used to hand out inhumane, unfair and life destroying sentences. I am heavily in favor of true criminals receiving their just punishments, but today after all the legal lying by prosecutors throughout the years with the aid of unfair and coercive Federal Sentencing Guidelines in place to threaten defendants into "voluntarily" giving away what is left of their constitutional rights, not one person in America today knows who is really guilty and if guilty what he/she was really guilty of.

If anyone really cared about justice, they would study the cases and find out how many were sentenced on pure fabricated charges. Since it was legal to do so and encouraged, I doubt that anyone hid their dirty work. It's very convenient to just say that ALL prisoners lie about their cases. The sad truth of the matter is that the prisoners in the federal prison system testimony to the facts is more trustworthy than the legal machinery that put them in prison on very little (or no) real evidence. How easy it became to take an American's liberty away! Is that not how the Soviets and Nazi Germany operated? In Practice, There was NO Due Process just rhetoric that "claimed" there was.

posted by a Spouse (and witness) of a Victim (Wrongfully Convicted) Trapped by the Coercive Plea Bargain with the FSGs used as a very real "Gun to the head".

A person here stated (or perhaps a link to a quote) that pleas were NOT coerced because a threat of real charges that would increase a sentence was perfectly acceptable because the person would be sentenced to what they actually deserved. What I have discovered is that (in practice) the threats are of "BOGUS" charges which would STILL be used to increase a person's sentence up to and including a LIFE sentence for nothing but a pack of lies. And the courts still PRETEND that the guilty pleas were not coerced! I have to question whether they live in the same universe as the rest of us.

Posted by: Jewel | Jan 13, 2005 1:04:54 PM

Good questions by Eric C. I think it will depend if there are significant concessions in the plea agreement that will translate to a lower guideline range. Let's not forget that in most states where the guidelines are advisory (including my own, Florida) the sentences in most cases track the guidelines. All in all, I think Booker will have the most impact in those cases we've all had were there were extenuating circumstances that begged for a lower (and, in some cases, higher) sentence than called for in the guidelines. At least in my district I think most judges will continue to sentence pursuant to the guidelines whether they are advisory or not except that the standard of review will be much lower. What does this mean for the practitioner? Know your judge! If he or she is liberal you might benefit but if he or she is conservative then you're client might get a longer sentence than he would have under the previous scheme.

Posted by: Ruben Oliva | Jan 13, 2005 1:08:36 PM

With all due respect to Frank, this is how it should be. Like all former AUSAs and DOJ veterans, Frank has a foreshortened and biased idea of how sentencing works. This is a conversation he and I had just after Apprendi came down. He saw revolution and innovation; I saw it as a return to the status quo ante. It's the Guidelines that are the outlier in sentencing, and one aspect of this status is their vast enhancement of the power of the prosecutors. The loss of the cooperation provision and the loss of prosecutorial power is not novel or revolutionary. It's a return to a traditional and, in this respect, preferable state of affairs.


Posted by: Kyron J Huigens | Jan 13, 2005 1:14:42 PM

Kyron, et al:

Let me clear up a couple of points:

First, the quote attributed to me in the WSJ is an overstatement. DOJ doesn't lose "all" its bargaining leverage under advisory guidelines. Plainly, as several folks have noted, incentives to cooperate will remain. The point I was making in the interview quoted in the WSJ is that DOJ is very likely to be concerned about Booker insofar as it apparently eliminates, moots, or at least renders less important the government monopoly on substantial assistance motions while at the same time giving judges a much broader degree of sentencing discretion generally. That represents a change disadvantageous to the gov't in what working prosecutors have always regarded as one of the most important features of the guidelines. Hence, this change is one that will tend to move DOJ in the direction of seeking remedial legislation.

Second, even if I am a warped ex-prosecutor, I don't necessarily think Breyer's remedy opinion in Booker is a bad thing. Indeed, as I have testified several times and said again on Minnesota Public Radio this morning, advisory guidelines would be a good thing as an interim state of affairs. If "advisory guidelines" per Breyer really means something like presumptive guidelines with more judicial departure authority, that's an improvement over the present system. Even if it means really and truly advisory guidelines where sentencing judges get to do pretty much what they want, even that would be a useful temporary experiment. We'd learn a lot and, if rational, could use what we learn to make a better permanent system. So, FWIW, my counsel to anyone who asks will probably be to wait awhile and see how the new system works out before moving immediately to legislate.

I would not bet much, however, that this counsel will carry any weight among those who really matter.

Frank Bowman

Posted by: Frank Bowman | Jan 13, 2005 1:34:07 PM


I certainly agree with you there is probably some hand wringing going on at DOJ. The iron grip that they had on the sentencing process has been loosened (although to what degree remains to be seen). Also, I agree that the Breyer remedy is not the end of the world as we know it. The guidelines are still around and will, IMO, continue to be the starting point of any sentencing hearing. Judges have become to confortable with them to abandon them wholesale, at least in my district. I repeat that I think that the Breyer remedy will be felt in those cases in the margins. I think defense counsel will have greater opportunites to influence the outcome in those sentencings. Unfortunately, I fear that in this political climate this experiment might be short lived and, worse, that a new scheme will emerge which is even more draconian. Time will tell.

Finally, as someone who practiced with Frank when he was a prosecutor -- he was neither "warped" nor closed minded :-)


Posted by: Ruben Oliva | Jan 13, 2005 1:53:40 PM

Anyone have anything to say about plea agreements that were negotiated pre-Booker that required a defendant's substantial assistance, but delayed the filing of an information until cooperation is complete? Is the bargain unenforceable due to force majeur? Does the defendant plead guilty pursuant to the agreement and hope for the best?

Steve (Defense Attorney)

Posted by: Steve Sanders | Jan 13, 2005 2:52:45 PM

The change to guidelines will help encourage co-operation among defendants whose case's particulars were already suggesting minimum sentencing.

Posted by: Josh Narins | Jan 13, 2005 3:02:40 PM

Scratch the above, sorry.

But the idea that "The defendant was not cooperative" would make no difference to a Judge without mandatory guidelines seems baseless.

Posted by: Josh Narins | Jan 13, 2005 3:09:02 PM

Ian Weinstein, Professor of Law, Fordham Law School.

Frank speaks wisely, as usual. It would be best if we could wait and see the new balance point of this new balance of power within the criminal justice system. As so many have noted in other places, the story of contemporary federal criminal practice has been the shift in power from judges to prosecutors. I think that trend is bigger than Booker and although this is an important moment, I wonder if things will change quite as much as some seem to predict.

Although Booker puts some power back in judicial hands, it does so in an environment quite different from the pre-SRA "old law" days. I need not remind this audience how many cases involve statutory mandatory minimums.

The bench has also changed. Relatively few judges have sentenced outside the Guidelines and the days of Judge Bazelon and rehabilitative sentencing are long gone. The federal case load has also changed and so many immigration cases now have a terror tinge to them that also militates in favor of harshness.

All this leads me to think we can expect a very moderate judicial response, as others have observed. The guidelines will still be the relevant baseline. It will, however, only take one or two sentences perceived as light to send Congress into a feeding frenzy.

Of course prosecutors will perceive a diminution in power, but I wonder how real that will be. It is the nature of the party with the burden to always want more evidence and to be very risk averse. It is always better to flip more defendants and get more pleas than to risk a trial, or even worse, risk a trial with less evidence than one might otherwise have, but the optimal balance probably does not give prosecutors everything they want.

It seems to me that federal prosecutors retain plenty of tools to vigorously and efficiently enforce the law. We may see a resurgence in prior drug offender charges, charge stacking, charging up and other tried and true methods of holding defendants' feet to the fire.

Booker is significant, but the new world will probably look a great deal like the old world. My guess is that we will continue to see about two thirds of the cases within the guidelines, with the number of substantial assistance cases declining slightly and the number of what we used to call other departure cases rising slightly, accompanied by a small dip in overall sentence length in fraud and other non-violent, non-drug cases. The drug cases will continue to be driven by the mandatory minimums and the violent cases will continue to get long sentences.

There will be some greater range of sentences, which some of us will perceive as more individualized justice and others will see as unwarranted disparity. Then Congress will step in and muck the whole thing up, until the players can reestablish an equilibrium that will likely continue the overall trend of greater prosecutorial power and sentence severity. Those trends will shift when the culture is ready for less harshness, and are largely beyond the law.

But we are living in somewhat interesting times.

Posted by: Ian Weinstein | Jan 13, 2005 3:14:28 PM

Maybe now defendants will be able to make motions of their own regarding cooperation. AJ Kramer in D.C. made the argument years ago. It's time, perhaps, to re-evaluate these arguments. The AUSAs here in the ND OH with whom I have spoken are uncertain how things will be affected. At least one thinks, however, that the idea above is not a foolish one.

Dennis Terez
Assistant FPD, ND OH

Posted by: Dennis Terez | Jan 13, 2005 4:10:18 PM

I still remember my uneasy feeling when I represented my first client facing criminal charges in Federal Court and it came time to discuss the effects of the plea. I couldn’t believe I was unable to advise my client “intelligently” about the certainty of his sentence, considering the uncertainty of what co-defendants, or those sneaky little unindicted co-conspirators, might recall to save their skin, and in the case of the former, obtain that golden 5K. Even worse, hearsay statements from law enforcement regarding statements from confidential, but reliable sources, would most likely be swallowed whole, and with a satisfied smile and compliments all around, by this Judge and the sentence further increased..
After reading Booker, along with Apprendi, Blakely etc, I find myself with no further real intellectual guidance than I had before and perhaps less. I guess the next thing to expect will be a multi-prong test to determine whether the Court reasonably considered the Guidelines.
In my humble opinion, the Standard of Proof needs to be raised for all upward departures, except perhaps prior criminal history, for which most defendants should be held accountable, at least, for remembering. Then, perhaps, a defendant could intelligently decide whether to enter into a plea agreement, plea straight up to the indictment or go to trial, knowing, with some certainty, the effect of his decision on his sentence.

Posted by: John Floyd | Jan 13, 2005 6:41:19 PM

I spoke with an AUSA late this afternoon. I'm advised the DOJ's current position is that the sentencing judge must calculate the guidelines. Moreover, DOJ believes "reasonableness" is the advisory guideline range that the sentencing court must determine. Any sentence that is above or below the guideline range is unreasonable.

Posted by: AFPD | Jan 13, 2005 9:53:11 PM

Professor Weinstein has some great comments-- particularly that (1) the judicial landscape has changed a lot, even since Apprendi was decided. Congress seems to think that all federal judges are ultra liberal, yet they have confirmed over two hundred judges appointed by G.W. Bush. Those judges, used to the Guidelines, are not going to jump immediately away from the Guidelines' suggested range. But I'm also very concerned about Professor Weinstein's second point: that one or two ligher sentences (or the sentencing schemes of 20 or so judges) will cause Congress to go into a feeding frenzy and make terrible band-aid fixes that no one will like (making a fixed sentencing system that hardly considers whether a sentence is "just"). However, I'm hopeful that the idea that our country needs to be "smart on crime" rather than "tough on crime" has begun to infiltrate the federal legislature and perhaps we will get a viable, and more fair, solution.

Posted by: District Clerk Battling Blakely | Jan 14, 2005 9:39:34 AM

I practice in Texas, which, like most of the country is hardly filled with liberal Judges looking for a reason to put offenders back on the street. In my experience most Judges hand down sentences within the medium range of the Guidelines, with some inviting a plausible departure to max out an uncooperative or disrespectful defendant. However, I am also afraid that this line of cases along with a new case with bad facts will cause a manic frenzy within the Congress and destroy what little reason has been injected into the Guidelines.
At least, for the time being, understanding a Judge's predispositions towards sentencing might have some value when it comes to advising a defendant of the possible outcomes of a plea. The 5k still remains a single edge sword, demanding cooperation and creative recollection, which will most likely limit the importance of this line of cases until they are further refined.
Maybe surprise enhancements above the statutory maximums will be reduced, especially for those defendants who are represented by good intentioned lawyers who have little or no experience before the federal courts.
I hope these decisions, and what most surely be interesting cases and legislation to follow, will allow Courts to consider the offender’s entire history and issue a punishment that is just for society, without being cruel and unusual toward the specific offender.

Posted by: John Floyd | Jan 14, 2005 10:19:34 AM

I am a retired Chief PO from D/MA working for past five years as a guideline consultant. I wonder how and if the process to determine the guideline range will change. I believe presentences will continue to be written and objections filed on both sides. If guidelines are merely advisory, then are we in for redacted objections to PSRs, redacted evidentiary hearings? If DOJ assumes the guideline range is the "reasonable" range for a sentence, then is the court's determination of that range also to be reviewed for reasonableness. If a judge makes a finding of a guideline range that the government vehemently objects to, is that also appealable even if the judge sentences within that range. It seems to me that judges now have more wiggle room in deciding gray areas within the guidelines. Or will there continue to be long and involved hearings to arrive at the appropriate guideline. I'd appreciate the gurus thoughts on this.

Posted by: Fran Bowman | Jan 14, 2005 2:59:17 PM

If the defense attorneys are smart, they'll take every case to trial. Especially if prosecutors put Blakely waivers and 2255 waivers in plea offers. No one in their right mind should waive any right to appeal, unless they're getting such a good deal they can't pass it up, which I doubt happens all that often.

If prosecutors were in the profession for the right reasons, it would help. In 20 years I've seen too many who are in it for the "glory" and to feed their egos. Sorry, but that's the way I see it. They don't look at both sides, they don't look at the value of the amount of incarceration or the benefit to society, just at how good or bad it makes them look.

In many cases, especially non-violent and white collar crimes, incarceration past a certain point has no value--to either the defendant or society.

The worst thing is those most likely to re-offend are getting into drug programs and getting out sooner than those with much less serious crimes. Explain that rationally.

Posted by: ST | Jan 15, 2005 11:01:37 AM

I read this stuff here and am amazed,while a relative of mine,falsley imprisoned in a Colombian gulag,did not reiceive any rights,nor attorney.She was beaten and abused in detention.The judges can be bought.The prison gaurds too.Americans have no rights.Drug use is not illegal there,only trafficking IF you are a foreigner.You can com[plain all you wnat about American Justice,but hte basics apply here.

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