Wednesday, February 25, 2015
Kevin Bennardo (Indiana University Robert H. McKinney School of Law) has posted United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements (71 Washington and Lee Law Review Online 160 (2014)) on SSRN. Here is the abstract:
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.