Buffalo Law Review
These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems in the federal criminal justice system. Cooperation is unevenly distributed and subject to wide variations in local practices and policies. While one defendant may receive a very significant sentence reduction for a given kind of assistance to the government, another may receive no reward for the same efforts. The system is rife with individual and district-to-district disparities, a problematic situation in a sentencing regime that values uniform sentencing above all else. The excessive use of cooperation also damages the adversary system by putting too many defendants on the government's team and making the defense lawyer little more than a passive observer of his or her client's case. Finally, widespread cooperation is ethically problematic. Because disloyalty is at the heart of cooperation, snitching engenders almost universal moral ambivalence and we should question whether the government should encourage so much of it. The current rate of cooperation is particularly troubling because a significant portion of snitching brings relatively few concomitant law enforcement benefits. The current rate of cooperation is unjustifiable. Unfortunately, cooperation will remain excessive until the incentives for its use are reduced. Those who make the day-to-day decisions to buy and sell cooperation gain many benefits from the practice and are largely unaffected by the systemic problems of inequity, damage to the adversary system and the moral ambivalence surrounding snitching. The current market for snitches cannot optimize the use of cooperation because these decision-makers internalize the benefits and externalize (and so largely ignore) the costs.
Regulating the Market for Snitches , 43 Buff. L. Rev. 563
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