Advantages of cooperationThe best deals in criminal cases await those who cooperate or turn state’s evidence against their confederates. Cooperation is the only way you can avoid imposition of a mandatory minimum sentence in most federal drug cases. If your involvement in a conspiracy is marginal, your cooperation may even convince the prosecutor not to charge you.
Risks of cooperationCooperation entails serious risks. You and your criminal defense attorney should make sure that the prosecutor and agents or police take those risks seriously and are capable of protecting you. Besides risk of harm, you may not be able to live with the knowledge that you betrayed former friends. However, remember that your friends put you in this mess by enlisting you as a criminal conspirator and, had they the chance, they probably would cooperate against you without hesitation.
The carrot and stick to cooperationMost prosecutors take a “carrot and stick” approach to cooperators. The carrot is a substantial sentence reduction. The stick is a surrender of rights and plea to a serious charge such that if the cooperator betrays the prosecutor, the prosecutor easily can impose a crushing sentence as punishment. Thus, you may find yourself forced to plead to more serious charges and stipulate to more weighty sentencing guidelines if you cooperate than on a straight plea. Prosecutors do this not only to enlarge their “stick,” but to persuade a jury that the cooperator is not to be treated so leniently that the jury finds offense. Further, the prosecutor will want to use the cooperator’s stipulation to the scope of the conspiracy and the amount of drugs or money involved to set a high benchmark for the rest of the defendants. The prosecutor will claim that the reduction for your cooperation will make up for the plea to more serious charges, but this is not always the case. Some prosecutors specify the degree of the sentence reduction that they will recommend in the plea agreement while others leave the extent of the reduction entirely up to the judge. In the latter case, a rule of thumb often develops among local judges to reduce sentences by a relatively uniform percentage for cooperation (e.g., one-half, one-third, or two-thirds).
Prosecutor’s discretion to assess the value of the cooperationMost cooperation agreements vest in the prosecutor nearly unreviewable discretion to assess the truth and value of your cooperation and to decide whether to ask the judge for a sentence reduction. However, courts have authority to review whether this discretion is exercised in good faith. Examples of bad faith include:
- Refusing a reduction based on the defendant’s religion, ethnicity or political beliefs, or refusing to ask for a reduction based on conditions or conduct of which the government already was aware at the time of the agreement.
- Basing a refusal on a belief that the guideline sentence before a reduction is sufficiently lenient.
- Refusing because the defendant provides truthful information that the government does not want to hear.