Prosecution Law Symposium
| VOLUME
29 |
Summer 1999
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NUMBER
1 |
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Departing is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Indiscipline
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Frank O. Bowman, III |
| In 1998, two United States Courts of Appeals handed down striking decisions regarding the power of courts and prosecutors to bargain for testimony by rewarding cooperating witnesses with reduced punishment. In United States v. Singleton, a panel of the Tenth Circuit found that bargaining for testimony constitutes felony bribery, and in In re Sealed Case, the D.C. Circuit disregarded plain statutory language and concluded that courts could award sentence reductions to cooperating witnesses for "substantial assistance" to the government without a motion from the government requesting such relief. This Article uses Singleton and In re Sealed Case as vehicles to discuss the place of substantial assistance departures in the Federal Sentencing Guidelines scheme. The Article contends that the Singleton and Sealed Case panel decisions were wrong as a matter of law, and were equally flawed as statements of legal policy. Nonetheless, these decisions reflect a strong and understandable current of judicial unease with current practices regarding bargained-for testimony. The Article argues that the Department of Justice has failed to properly and discretely manage the power conferred upon prosecutors by statute and the Sentencing Guidelines to induce witness cooperation. It recommends that the Justice Department take a number of steps, including the adoption of internal guidelines for making substantial assistance motions, aimed at producing a consistent, rational, and parsimonious approach to the use of substantial assistance motions in U.S. Attorneys' Offices nationwide. |
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