Dead Booker walking?: incentives to cooperate

The news of two recent high-profile plea deals that include agreements to cooperate — involving Enron CAO Richard Causey and lobbyist Jack Abramoff — has inspired me to revive my long-dormant "Dead Booker walking?" series.  As detailed in this post, in anticipation of the brewing Booker fix debate, I hope in this series to explore those arguments which might be made in support of new sentencing legislation in response to Booker. 

One possible argument for a Booker fix, which was expressed by AG Alberto Gonzales in a speech last summer (basics here, commentary here and here and here), is that the advisory guideline system created by Booker harmfully dilutes the incentive for defendants to cooperate with authorities.  Here is how AG Gonzales explained this concern:

Our U.S. Attorneys consistently report that a critical law enforcement tool has been taken from them.  Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court.  Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated.  And since defendants no longer face penalties that are serious and certain, key witnesses are increasingly less inclined to cooperate with prosecutors.  We risk a return to the pre-guidelines era, when defendants were encouraged to "play the odds" in our criminal justice system, betting that the luck of the draw — the judge randomly assigned to their case — might result in a lighter sentence.

I think there would be a strong argument for at least tweaking Booker if there is considerable evidence that key witnesses are now "increasingly less inclined to cooperate with prosecutors."  But the recent Causey and Abramoff deals suggest that "key witnesses" remain willing to cooperate even though the guidelines are no longer mandatory.  And evidence of continued post-Booker cooperation comes not only from high-profile cases, but also from the latest US Sentencing Commission statistics: these stats show post-Booker rates of cooperation that are comparable to pre-Booker rates of cooperation.

The persistence of cooperation not surprising given that Booker only made federal penalties somewhat less "certain," and Booker did not make federal penalties any less "serious."  Moreover, the guidelines and other post-Booker sentencing realities still ensure in various ways that true cooperation gets rewarded at sentencing. 

Of course, prosecutors might respond that the post-Booker disinclination to cooperate is reflected in the dynamics of plea negotiations — i.e., after Booker, prosecutors might have to work harder, or offer greater concessions, to get defendants to agree to cooperate.  But given the extraordinary power that federal prosecutors have always had (and always will have) in plea negotiations, Booker's (slight?) recalibration of plea negotiating dynamics may be a virtue more than a vice.

Finally, in all the post-Booker debate over advisory guidelines, it is always critical to keep in mind, as I have stressed here and here, that (1) it was the Justice Department who vigorously urged the remedy of advisory guidelines if Blakely was deemed applicable to the federal system, and (2) the easiest (and most constitutionally sound) way to restore mandatory sentencing guidelines would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences would now have to be proven to a jury or admitted by the defendant.

Prior posts in this series:

• Dead Booker walking?: an introduction