Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

706. See Wade v. U.S., 504 U.S. 181, 185-86 (1992) (prosecutor's refusal to seek reduction of sentence proper under 5 SKI.1 if defendant fails to allege that refusal motivated by defendant's race or religion); U.S. v. Montanez, 82 F.3d 520, 522 (lst Cir. 1996) (prosecutor has discretion to move for departure below allowable statutory minimum sentence); U.S. v. Resto, 74 F.3d 22, 25 (2d Cir. 1996) (prosecutor retains broad latitude in determining whether to move for downward departure in sentencing pursuant to

cooperation agreement making government's assessment of defendant's cooperation binding on defendant); U.S. v. Goossens, 84 F.3d 697, 704 (4th Cir. 1996) (government has broad discretion to determine whether to move for downward departure based on substantial assistance, "subject only to constitutional or self-imposed restraints"); U.S. v. Amaya, 111 F.3d 386, 388 (Sth Cir. 1997) (court cannot make even a factual inquiry into government's decision not to recommend downward departure "unless it is manifestly clear from obvious bases that invidious discrimination is the motivation"); U.S. v. Senn, 102 F.3d 327, 332 (7th Cir. 1996) (government's recommendation for a downward departure, based on a percentage of defendant's total sentence, is not improper, irrational, or arbitrary, and does not indicate bad faith on behalf of government, especially in absence of prosecutorial animus toward defendant); U.S. v. Nicolace, 90 F.3d 255, 258-9 (8th Cir. 1996) (defendant failed to make substantial threshold showing that government's refusal to file motion for downward departure for substantial assistance was irrational or based on an unconstitutional motive when the information defendant provided to prosecutor proved to be of little use and when plea agreement did not contain any provisions regarding the possible filing of a substantial assistance motion); U.S. v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995) (prosecutor's refusal to move for (sec) SKI.1 downward departure not reviewable absent unconstitutional motive or arbitrariness); U.S. v. Easter, 981 F.2d 1549, 1555 (lOth Cir. 1992) (prosecutor's decision to move for 5 SKI.1 downward departure within prosecutorial discretion); U.S. v. Alvarez, IIS F.3d 839, 841 (llth Cir. 1997) (same); U.S. v. White, 71 F.3d 920, 924 (D.C. Cir. 1995) (prosecutor's refusal to file motion for departure under Sentencing Guidelines within prosecutorial discretion when government has legitimate interest in having defendant provide more assistance than less). But see U.S. v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992) (prosecutor's refusal to move for downward departure not within prosecutorial discretion after defendant testified as promised and government offered insufficient reasons for refusal). For further discussion of the government's right to move for a downward departure, see Departures in SENTENCING GUIDELINES in Part IV.

707. See Wade, 504 U.S. at 1843-44 (courts have authority to review prosecutor's refusal to file substantial assistance motion if based on unconstitutional motive); U.S. v. Price, 95 F.3d 364, 368 (Sth Cir. 1996) (per curiam) (defendant's request for downward departure was correctly rejected when defendant did not allege that government's refusal to move for downward departure was based upon an unconstitutional motive, and plea agreement expressly stated that decision to move for downward departure remains within "sole discretion" of the government); U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997) (defendant failed to make threshold showing of any unconstitutional motive on behalf of government and to show that government's withholding of motion for downward departure was not rationally related to any legitimate government end, when government's withholding of motion was based on defendant's withdrawal of first guilty plea, and on the fact that assistance provided by defendant proved to be unrealiable); U.S. v. Matlock, 109 F.3d 1313, 1317-8 (8th Cir.) (defendant failed to prove that government's decision not to file motion for downward departure based on substantial assistance was irrational or in bad faith when defendant initially refused to enter courtroom to testify against his codefendants, and defendant admitted his testimony against codefendants "was practically an act," despite plea agreement obligating defendant to cooperate in prosecution of codefendants), cert. denied, 118 S. Ct. 188 (1997); U.S. v. Khoury, 62 F.3d 1138, 1140-42 (9th Cir. 1995) (court had authority to depart downward without prosecutor's motion when government initially made 5K1.1 motion for substantial assistance then withdrew motion in retaliation for defendant's exercise of right to trial); U.S. v. Hawley, 93 F.3d 682, 691 (lOth Cir. 1996) (court lacked jurisdiction to consider defendant's claim that he was entitled to downward departure when defendant failed to allege that the government had an unconstitutional motive for its refusal to file motion for substantial assistance on his behalf).