Sunday, November 8, 2009

Federal rewards for prison snitches

The federal rules of criminal procedure have special re-sentencing provisions for informants who provide information after they have already started serving their sentences. Rule 35(b)(2) permits a court to reduce a prisoner's sentence if the government asks the court to do so more than one year after sentencing. Rule 35(b)(1) governs such requests made less than a year after sentencing. Approximately 1,700 federal prisoners got such sentence reductions in fiscal year 2008. At least one federal judge, Judge Tucker Melancon (D-LA), has complained that inviting inmates to provide information while they are in prison is an invitation to fabrication. See post: Professional prison snitch ring.

Last month, the Seventh Circuit issued an opinion interpreting Rule 35(b)(2). In U.S. v. Shelby, the court held that a district judge contemplating a motion for a sentence reduction can only reduce the sentence based on the extent of the defendant's cooperation, and not on the more general sentencing factors contained in 18 U.S.C. 3553(a) which judges are required to consider when initially sentencing defendants. By contrast, the Sixth Circuit has held that judges can consider 3553(a)'s general sentencing factors--which include things such as a defendant's likelihood of rehabilitation, prior criminal record, and other personal history--when resentencing under 35(b)(2).

This may seem like an esoteric point, but it is important for several reasons. First, it affects thousands of sentences each year. Second, judges can consider the 3553(a) factors in refusing to reduce a cooperator's sentence; they just can't consider those factors if they want to lower the sentence. The Sixth Circuit deemed this to be an unfair "one-way rachet"--the Seventh Circuit didn't. Shelby also resists the general tide of recent federal case law that favors judicial discretion, since United States v. Booker restored sentencing discretion to federal judges. (See Sentencing Law and Policy blog for detailed discussions of Booker-related developments.) The Seventh Circuit, and other circuits that agree with it, have curtailed that discretion when it comes to rewarding post-sentence cooperation.

Finally, this case is a reminder of how central snitching is to federal criminal law. With the abolition of parole, federal offenders are required to serve nearly their entire sentences, regardless of their conduct in prison, further education, or other rehabilitation. As this case makes case abundantly clear, the only chance they have to earn early release is to give information to the government.