Thursday, January 13, 2005

5K1.1 Post-Booker

Many are talking about Booker's effect on 5K1.1 motions, always a hot topic in the white collar area.  Doug Berman's Sentencing Blog raises the issue and the NACDL list serv has had its share of chatter.  Professor Berman includes a Wall Street Journal quote from Indiana University School of Law at Indianapolis Professor Frank Bowman, who states that, "[n]ow that the guidelines are only advisory, defendants may see less need to cooperate."  The article states that "[t]he Department of Justice has just lost all of its bargaining leverage" with defendants, asserts Prof. Bowman." (but see addendum below).

Lets slow down. 

1. First, the Booker decision does not appear to remove the government ability to file a 5K1.1 Motion.  It also does not invent a 5K1.1 motion for the defense to file. 

2. Yes, the Court can depart downward absent a government agreement as long as it is not "unreasonable."  And although it can happen absent a request or the permission of the prosecutor, is it really that likely?

3. The bottom line is that courts are instructed to use the guidelines.  And with ample knowledge of what the guidelines advise (since they have been using them), it seems likely that unless the circumstances warrant (e.g., the government told the defendant they would file a 5K1.1, the defendant assisted, and then the government fails to do so), most courts are not going to be haphazardly departing downward. 

4. The guidelines have constrained the judiciary in cases that just didn't fit the norm.  Judges left the bench because of their inability to comply with the guidelines restrictions (it's a shame we can't get them back now).  So merely balancing things out is not an announcement that everything is up for grabs.  Lets be reasonable about this Court result. 

5. If the prosecution offers no incentive to plea, then yes the defense may take a chance with the court.  But that would have happened pre-Booker.  And most defendants will want certainty in a plea as opposed to rolling the dice with a judge that could go down OR UP.  And judges are more likely to take a plea and adhere to a plea that both sides agree to.  So, the bottom line is....perhaps if we give this some time we may find that the post-Booker and pre-Booker scenarios are pretty close to the same result.


Addendum- Professor Frank Bowman responds in a comment on the Sentencing Blog to some of these points and his statement includes the following - "the quote attributed to me in the WSJ is an overstatement."

Addendum to # 5 - it refers to future cases and not past cases, as going "UP" may present other legal problems if attempted on a past case.

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