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In this Article, Professor Lee examines the government motion requirement for substantial assistance departures in light of Congress's goals for implementing the federal sentencing guidelines. In Part One, Lee discusses the government motion requirement against the backdrop of the goals Congress had in mind when it enacted the federal sentencing guidelines. She points out that while Congress enacted the sentencing guidelines to promote uniformity and proportionality (an "equality value") and honesty and certainty (a "reliance value") in sentencing, the government motion requirement gives prosecutors the unilateral authority to block downward departures for substantial assistance. This increase in prosecutorial sentencing discretion prompts Lee to question whether crucial decisions respecting punishment should be made behind closed doors in discussions not open to public or in the relatively open, public courtroom. Part Two canvasses the unsuccessful legislative and judicial attempts to eliminate the government motion requirement. In Part Three, Lee explains that reluctance to eliminate the government motion requirement stems in large part from the misguided assumption that the government motion requirement is merely an extension of a prosecutor's charging and plea bargaining discretion. Professor Lee shows how these views are misguided by juxtaposing the significant steps taken to restrict prosecutorial discretion in charging and bargaining with the unchecked prosecutorial discretion over the government motion requirement.

Finally, in Part IV, Lee proposes more restrictions and guidance on both prosecutorial and judicial discretion regarding substantial assistance departures. Lee recommends elimination of the government motion requirement, and argues that judges should make the ultimate determination whether a defendant deserves leniency for cooperation. However, this judicial discretion should be limited to prevent judges from using substantial assistance as a backdoor means of regaining the unfettered sentencing discretion they held before the sentencing guidelines. Lee contends that these steps would better accommodate Congress's goals and ensure that substantial assistance departures are fairly and reliably granted.

GW Paper Series

GWU Law School Public Law Research Paper No. 310; GWU Legal Studies Research Paper No. 310

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