Oct 25, 2007

"myths and illusions" of cooperation agreements

Here's an important and ground-level discussion of federal sentencing guidelines as they relate to cooperation agreements [pdf].

The authors lay out some interesting facts. Concerning "downward departure," or the reduction in sentence for cooperation, which is made independent of federal guidelines, as the law permits:
Approximately 35% of all federal criminal defendants receive a downward departure for providing substantial assistance and over 26% of those involved in drug trafficking offenses receive a downward departure for providing substantial assistance. Many more try to cut a deal, but the information they offered was either useless or already known to the government. Considering the fact that the average departure for substantial assistance in drug cases is 36 months from the applicable guideline range it is safe to assume that most drug trafficking defendants who received a §5K1 departure still ended up with a substantial prison sentence.
The decision to cooperate is often rushed:
Unfortunately the “window of opportunity” for truly ‘substantial” cooperation is often closed quickly and these decisions must be made rather quickly.
One form of cooperation agreement leads to a WITSEC, or Witness Security, program of imprisonment:
WITSEC involves long stays in Protective Custody meaning the SHU or Segregated Housing Unit, also known as the Hole. Being in PC is not a way to spend your time if it is at all possible. For the most part, you spend your time in the SHU and are treated as a high security risk with a disciplinary problem. You are locked down 23 hours a day and have very limited contact with anyone. In other words, regardless of the reason why you are in the SHU the corrections officers pretty much treat you all the same: As if you are a degenerate, violent criminal with a disciplinary problem. PC is no way to bid and in my experience “SHU time” was the toughest part of my sentence.
PC, or protective custody, can turn out to be a worse punishment than normal incarceration. Also, the plea bargain is a guarantee of nothing:
Regardless of the amount of time called for in the Sentencing Guidelines for a defendants’ particular crime, criminal history, adjustments etc, the court is free to grant as much or as a little a departure as it chooses. By law, the court must consider the factors enumerated in USSG §5K1 but once it does so it is free to grant a departure significantly below the purported mandatory minimums or required under the applicable guideline level.
Those considering the justice of plea bargaining in exchange for testimony are highly advised to read and understand the implications of the system, especially as outlined in Section 5K1 of the US Sentencing Guidelines--and consider how it affects defendants who have "come clean" and are willing to cooperate. Even they aren't always served fairly.

1 comment:

Anonymous said...

hey Jim,

first of all, thanks for all the great information

my question is how would you recommend attacking both deontology and consequentialism for this resolution?