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In this article, Cynthia Lee examines the tension between judicial discretion and the sentencing guidelines established by the Sentencing Reform Act of 1984. Lee argues that a sentencing court should not require a government motion before departing downward in recognition of a defendant's substantial assistance in the investigation or prosecution of another person. In Part One, Lee provides the historical background leading to the creation of the sentencing guidelines, which were enacted to curb the sentencing disparity resulting from broad judicial discretion. In Part Two, she summarizes the district and appellate court interpretations of 18 U.S.C. Subsection 3553(e) and Subsection 5K1.1 of the guidelines. While appellate courts generally have not allowed downward departures without a government motion, some district courts have either (1) treated letters regarding the defendant's cooperation from the government to the court as the functional equivalent of a government motion; or (2) imposed a duty to act in good faith on the government in providing a detailed statement of any assistance actually rendered by the defendant. In Part Three, Lee recommends elimination of the government motion requirement. The government motion requirement gives the prosecutor - who is not an unbiased player in the sentencing process - enormous discretion to determine the defendant's sentencing. Professor Lee argues that this discretion should rest with the judge, and that the sentencing court should weigh the government's assessment of the defendant's assistance against the evidence presented by the defendant.

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GWU Legal Studies Research Paper No. 317; GWU Law School Public Law Research Paper No. 317

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