This tribute to the criminal judge divides the authority of 5K1.1 more evenly between the government and the district court. The government continues to control access to an otherwise unattainable sentence and is therefore in a position to obtain the cooperation of the accused. But once the government`s request is filed, it is the criminal judge who decides regardless of the value of the accused`s cooperation. And southern district judges tend to reward considerable support with substantial down departures according to the .5K1.1- especially, it seems, when the co-operator testifies against others. The result is relatively short penalties for co-operators, a strong incentive for cooperation and a judicious review of the strict guidelines. The differences in the practice of 5K1.1 mean that the benefits that a defendant can expect from cooperation and the extent to which the harshness of the guidelines varies considerably from district to district in cases where the criminal judge is reluctant to leave for other reasons. In districts where a conservative practice of 5K1.1 has power, prosecutors have more control over the sentence of a cooperating defendant, but less power to cooperate. The opposite is true in districts where cooperation is richly rewarded and where criminal judges exercise their autonomy when assessing the co-operation of an accused. Whatever practice one prefers as a politician, it seems clear that the latter approach, with its transfer of power from prosecutors to judges, is more in line with the bookers spirit. Since their inception, U.S. sanctions for the draconian penalties they produce have been widely criticized. The influence of the guidelines was somewhat reduced in 2005, when the U.S.
Supreme Court ruled that district judges could take into account the guidelines when imposing a sanction, but could not be bound, in accordance with the Sixth Amendment. See United States vs. Booker, 543 U.S. 220 (2005). But even according to Booker, the guidelines remain the most powerful factor in sentencing a federal criminal. For a lawyer who represents an accused at sentencing, opposition to the instructions is of the utmost importance. District judges may deviate from the guidelines for almost any reason, but the most common way to arrive at a sentence well below the scope of the directive is a downward change under the 5K1.1 guideline, which is the primary vehicle for obtaining and rewarding the cooperation of a criminal lawyer with federal authorities – its “essential support.” The courts are already considering, in all convictions, the impact that a judgment will have on the Community under the heading “general deterrence” under section 18.C, p. 3553 a), which, according to U.S.
District Judge Jack B. Weinstein, concerns the need to “demonstrate to others the cost of commissioning a crime and thereby deter criminal behaviour.” However, in Section 3553 (a) or Section 5K1.1, there is no comparable factor requiring the courts to consider the impact that a co-operator conviction will have on the Community (although many jurisdictions take this into account anyway).