This Note examines the government motion requirement of 18 U.S.C. § 3553(e) and section 5K1.1 of the Federal Sentencing Guidelines from a separation of powers perspective. The issues discussed include whether requiring authorization from the prosecutor before a sentencing judge can consider a defendant's cooperation when determining whether to grant a downward departure below a mandatory minimum sentence violates separation of powers. Building on the concerns of past commentators and recognizing that the Federal Sentencing Guidelines are likely here to stay, this Note proposes that, in order to protect the perception of integrity in the criminal justice system, Congress should revisit current sentencing policy and address perceived shortcomings in the allocation of sentencing power between judges and prosecutors.
Rebuilding the Safety Mechanism: Does 18 U.S.C. § 3553(e) Violate the Separation of Powers,
76 Fordham L. Rev. 1065
Available at: http://ir.lawnet.fordham.edu/flr/vol76/iss2/18