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December 14, 2018

Federal judge frets about trend to conceal from public view information about cooperation sentencing credits

A helpful reader made sure I saw the work of US District Judge D. Brock Hornby published this week online in the ABA Journal discussing the history and recent trends in the federal system concerning defendants getting sentencing credit for cooperation and the pressure to disguise these realities due to concern about the threat of violence against cooperators in federal custody. My understanding is a longer version of this work with appear in the Spring 2019 print issue of Judicature, but the substance of his commentary can be seen now in these two spots under these headlines:

Here are a few paragraphs from each part of this work:

Defendants want their cooperation secret for their safety; prosecutors want it secret, so that defendants are not afraid to cooperate.  Many judges comply with these requests, and some districts have adopted standing orders to preserve cooperation secrecy.  But nationally, and sometimes even within individual districts, it is a patchwork quilt.

Today’s federal sentencing landscape includes courts where the courtroom is physically closed for any cooperation discussion; courts where the courtroom is not closed but any cooperation discussion occurs out of public hearing in chambers or at a private sidebar (some judges hold a pro forma sidebar even where there is no cooperation so that observers cannot infer cooperation from the sidebar); courts where everything is done in open court without sidebars; courts where the lawyers submit cooperation details under seal but the judge announces the sentencing rationale in open court; courts where transcripts of some or all of the above are sealed; courts where virtually nothing is sealed; courts where docket entries are structured so that outsiders cannot determine whether a defendant has cooperated; and probably other variations....

No federal judge wants to be responsible for the death or assault of a sentenced defendant who cooperated.  The judge has determined the offender’s punishment, and it does not include violence in prison.  But the judge’s role is limited.  The judge cannot determine the facility that the BOP will select for a particular defendant and the resulting risks. The judge cannot disguise the nature of the crime of conviction — for example, a crime such as child molesting that might provoke violence against the offender in prison.  The judge cannot ensure the adequacy of prison medical care.  These and other consequences are all outside the federal judiciary’s role.

What the judge can do — must do — is preserve the American public’s trust in the integrity and transparency of the federal judicial system.  Americans are entitled to know the role that cooperation plays in federal criminal law and sentencing.  If the threat of violence deters some defendants from cooperating, then the Justice Department must deal with that consequence in evaluating how it prosecutes cases, or it must find the resources and the way to help the BOP do its job of making prisoners — including cooperating prisoners — safe.

At the end of the day, encouraging or discouraging cooperation is not the business of federal judges.  That is the executive branch’s role.  Judges constitute an independent branch of government with distinctive responsibilities.  Our charge is to sentence convicted defendants fairly, based on all the facts and circumstances and the law, and to explain as clearly as possible to the public, the defendant and the victims how we reach the sentence we pronounce.

As some of us say, a sentencing proceeding is a community morality play in which society’s values are publicly applied and affirmed.  We should not let the violence of prisoners — even a violence that the BOP apparently cannot control — drive federal sentencing underground.

December 14, 2018 at 09:12 AM | Permalink


Just speaking from a State perspective - it's not uncommon to seal orders listing cooperation as a reason for a continuance. It's also not uncommon for someone to screw up and not seal it, so I have discussed it with a Judge in chambers and put a more vague reason on the order. For sentencing, I have never seen a courtroom closed, but I have seen the cooperation told to the Judge at sidebar. That being said, at least one Judge refuses to do that for similar reasons to this Judge.

Anyway, the risk of violence seems to outweigh these concerns. The idea of sentencing being a morality play may be romantic, but it's overstated at best. There are competing concerns and people not dying seems like a valid one.

Posted by: Erik M | Dec 14, 2018 12:12:22 PM

I'm sure there is a concern about the risk of violence that is used to defend the need for secrecy. Another component of this is the threat of prosecution to compel testimony. This is also not transparent.

Posted by: beth | Dec 14, 2018 4:41:56 PM

This is a nice abstract discussion but the threat of violence is real. And the understaffed BOP cannot or will not protect my clients. People on the outside, or prisoners on contraband cell phones, look up dockets and court filings on PACER and report on whether clients are "snitches." The risk is the worst at certain USPs like Beaumont and Hazelton. If you want to maintain transparent courts, start with a transparent and accountable BOP. They hide their incompetence behind "security" justifications and judges almost always refuse to dig in and investigate what is really going on.

Posted by: defendergirl | Dec 15, 2018 1:16:24 PM

Well, yes violence is a big consideration when you are talking about inmates who want to cooperate "snitch". I question whether these people should be used at all for prosecution or sentencing.

Beaumont used to be called bloody Beaumont and I've been there often. The inmate I knew there was even terrified when Human Rights Watch contacted him. I don't think that the violence is because they are understaffed, but is related to the culture of the officers in the bop.

Posted by: beth | Dec 15, 2018 6:23:05 PM

Just to add to what "defendergirl" posted...

Inmates are incredibly crafty at finding out what you're in for, if you have a "5k1" (cooperation agreement), and there is little to nothing an inmate can do to keep themselves safe. About all they can do is hide it and hope it doesn't come out, or "check in" to the SHU where conditions that are disgusting, limited visits, no access to email or regular showers. The contraband cell phones are a huge problem.

Because of the limited staffing inmates virtually run the prisons. They create the social hierarchy depending on your crime, gang affiliation, race, etc. The guards are just there to make sure everything runs smoothly and count is done when it's supposed to be.

The BOP has absolutely no transparency to the point where our federal prisons are almost like black sites. The only people that know what's really going on are the inmates and their relatives. I don't know how this gets fixed.

Posted by: Chris | Dec 17, 2018 11:41:16 PM

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