A helpful reader made sure I saw the work of US District Judge D. Brock Hornby published this week online in the ABA Journal discussing the history and recent trends in the federal system concerning defendants getting sentencing credit for cooperation and the pressure to disguise these realities due to concern about the threat of violence against cooperators in federal custody. My understanding is a longer version of this work with appear in the Spring 2019 print issue of Judicature, but the substance of his commentary can be seen now in these two spots under these headlines:
- Can federal sentencing remain transparent?
- What can be done to ensure that federal sentencing remains transparent?
Here are a few paragraphs from each part of this work:
Defendants want their cooperation secret for their safety; prosecutors want it secret, so that defendants are not afraid to cooperate. Many judges comply with these requests, and some districts have adopted standing orders to preserve cooperation secrecy. But nationally, and sometimes even within individual districts, it is a patchwork quilt.
Today’s federal sentencing landscape includes courts where the courtroom is physically closed for any cooperation discussion; courts where the courtroom is not closed but any cooperation discussion occurs out of public hearing in chambers or at a private sidebar (some judges hold a pro forma sidebar even where there is no cooperation so that observers cannot infer cooperation from the sidebar); courts where everything is done in open court without sidebars; courts where the lawyers submit cooperation details under seal but the judge announces the sentencing rationale in open court; courts where transcripts of some or all of the above are sealed; courts where virtually nothing is sealed; courts where docket entries are structured so that outsiders cannot determine whether a defendant has cooperated; and probably other variations....
No federal judge wants to be responsible for the death or assault of a sentenced defendant who cooperated. The judge has determined the offender’s punishment, and it does not include violence in prison. But the judge’s role is limited. The judge cannot determine the facility that the BOP will select for a particular defendant and the resulting risks. The judge cannot disguise the nature of the crime of conviction — for example, a crime such as child molesting that might provoke violence against the offender in prison. The judge cannot ensure the adequacy of prison medical care. These and other consequences are all outside the federal judiciary’s role.
What the judge can do — must do — is preserve the American public’s trust in the integrity and transparency of the federal judicial system. Americans are entitled to know the role that cooperation plays in federal criminal law and sentencing. If the threat of violence deters some defendants from cooperating, then the Justice Department must deal with that consequence in evaluating how it prosecutes cases, or it must find the resources and the way to help the BOP do its job of making prisoners — including cooperating prisoners — safe.
At the end of the day, encouraging or discouraging cooperation is not the business of federal judges. That is the executive branch’s role. Judges constitute an independent branch of government with distinctive responsibilities. Our charge is to sentence convicted defendants fairly, based on all the facts and circumstances and the law, and to explain as clearly as possible to the public, the defendant and the victims how we reach the sentence we pronounce.
As some of us say, a sentencing proceeding is a community morality play in which society’s values are publicly applied and affirmed. We should not let the violence of prisoners — even a violence that the BOP apparently cannot control — drive federal sentencing underground.
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