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NCJ Number: 134605 Find in a Library
Title: Federal Sentencing Law: Prosecutorial Discretion in Determining Departures Based on Defendant's Cooperation Violates Due Process
Journal: Southern Illinois University Law Journal  Volume:15  Dated:(Winter 1991)  Pages:321-351
Author(s): M M McGrath
Date Published: 1991
Page Count: 31
Type: Legislation/Policy Description
Format: Article
Language: English
Country: United States of America
Annotation: Introducing the rationale for the new Federal sentencing law, this article discusses the constitutional ramifications of prosecutorial power provided by the Sentence Reform Act and the Federal Sentencing Guidelines which restrict a judge's ability to depart from mandatory sentencing terms when a defendant provides assistance in the investigation or prosecution of another.
Abstract: Denying a cooperative defendant an effective opportunity to ask the court to depart from a mandatory sentencing term violates the due process clause of the fifth amendment. Defendants in only a few jurisdictions are assured a fair sentencing by courts which refuse to impose sentence based on the unconstitutional provisions. Some defendants might receive more lenient sentences where the court holds that the government reneged on an agreement to recommend downward departure, but most defendants cannot effectively summon the court's attention to their cooperation. This unjustifiably wide disparity in treatment of defendants who have assisted the government contradicts the purpose behind the new sentencing law and violates defendants' due process rights at sentencing. If Congress fails to revise the statutory provision and directs the Sentencing Commission to revise the policy provision which currently delegates discretion in requesting downward departure to the government only, the Supreme Court should intervene. 209 footnotes
Main Term(s): Right to Due Process; Sentencing reform
Index Term(s): Judicial discretion; Law reform; Mandatory Sentencing; US Supreme Court decisions
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