Only the most unreflective prosecutor can avoid feeling ambivalent about cooperation. Without the assistance of defendants willing to trade testimony for the expectation of sentencing discounts, many cases worth prosecuting could not be made. But if a prosecutor maintains any distance from these defendants – as he must – he is bound to be troubled by the magnitude of the discounts that the federal system (like other systems) gives to cooperators, many of whom rank as some of the most odious people he has ever met.
The idea of purchasing testimony through sentencing discounts has a long history, of course, as have condemnations of those who "snitch." The discounts, however, have become far more dramatic under the federal sentencing guidelines and the statutory mandatory minimums, whose harsh rigidity can effectively be turned off upon a prosecutor's certification that the defendant has rendered "substantial assistance" within the meaning of § 5K1.1 and 18 U.S.C. § 3553(e). These discounts, whose magnitude is primarily a function of a cooperator's value to the government, present a special challenge to a regime committed to proportionality and to sentences that reflect offense seriousness. Can this disruption can be justified?
Cooperating Defendants: The Costs and Benefits of Purchasing Information from Scoundrels,
Fed. Sent'g Rep.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/749