Cooperation is critical to federal criminal cases. For the government, cooperation is vital to securing the leads, information, and evidence needed to successfully investigate and prosecute criminal activity, particularly drug trafficking conspiracies and white-collar fraud crimes. For federal defendants, cooperation is the primary way to reduce their prison time exposure. Therefore, how a defendant’s cooperation is evaluated and translated into sentencing leniency is a significant issue for the government and cooperating defendants. Federal law and sentencing guidelines grant the keys to the
evaluation process to federal prosecutors by requiring a prosecutor’s substantial assistance motion before a judge can grant sentencing relief based on cooperation. When a federal prosecutor refuses to file a substantial assistance motion, judges have very limited and narrow authority and grounds to compel the government to file the motion or impose a remedy that allows the defendant to benefit from her cooperation. One such ground is bad faith—that a prosecutor’s refusal to file a substantial assistance motion is based on a reason unrelated to the quality of the defendant’s cooperation, but falls short of an unconstitutional reason, such as a defendant’s race or gender. Unfortunately, however, bad faith review is not universally recognized or accepted. This Article explores why the lack of universal acceptance is a mistake, and proposes a bad faith burden-shifting protocol for courts to employ.
Lucius T. Outlaw,
A Net for a Cooperator’s Leap of Faith: The Due Process Need for Universal Acceptance of Bad Faith Review of Prosecutors’ Substantial Assistance Determinations in Federal Sentencing,
104 Marq. L. Rev. 661
Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss3/6