In response to Ethan’s question, the 5K game is not over, but it should become more transparent and adversarial. Of course, cooperation is now less valuable, if only because it is no longer the only realistic basis for a below-the-guidelines sentence. The game is not over, however, for a number of reasons. First, 18 U.S.C. 3553(e) still provides that a government “substantial assistance” motion is required before a judge can impose a sentence below the statutory minimum (as opposed to the guidelines minimum). Also, sentencing departures are not the only benefits available to cooperators: for example they can get charges dropped or reduced before they ever get to sentencing. Moreover, even after Gall/Kimbrough, judges still need to calculate the guidelines in setting sentences and so cooperation is likely to remain, at least for a while, a valuable commodity in persuading judges to impose lower sentences.

The immediate practical difference after Gall/Kimbrough, though, is that defense attorneys will have an expanded role in advocating for their cooperating clients. When 5K departures were tightly controlled by the government and the rigidity of the guidelines, defense counsel mostly had to hope that the government would move for a departure. Now defense lawyers can independently present their client’s cooperation, even when the government disagrees or does not want that information to come forward. This could be significant – a 1998 Sentencing Commission report estimated that fewer than half of all cooperators actually received 5K departures under the old rules. At the very least, the new rules should create a more contested, better airing of federal cooperation practices, which is good news for the public.

Before I forget, for those interested in informant-related issues, the ACLU has a new website with lots of links and resources. http://www.aclu.org/drugpolicy/search/informantabuse.html