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23 Ind. L. Rev. 681 (1990)
The Sentencing Court's Discretion to Depart downward in Recognition of a Defendant's Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement

handle is hein.journals/indilr23 and id is 693 raw text is: The Sentencing Court's Discretion to Depart Downward in Recognition of a Defendant's Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement CYNTHIA K.Y. LEE* I. INTRODUCTION Whether a sentencing court can depart downward from the applicable sentencing guidelines in recognition of a defendant's substantial assistance without a government motion requesting such a downward departure is a hotly disputed issue. Section 5KI.I of the federal sentencing guidelines and 18 U.S.C. § 3553(e) specify that upon motion of the government, the court may depart from the guidelines or statutory minimum to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Section 5K2.0 of the sentencing guidelines and 18 U.S.C. § 3553(b) suggest that the sentencing court has the discretion to depart from the guidelines without such a government motion.' The courts have not reached a consensus on whether a government motion is absolutely necessary before a sentencing court can depart downward for substantial assistance, although two circuit courts have suggested that a court may, in exceptional circumstances, depart without such a government motion.2 This judicial reluctance to do away with the requirement of a government motion may stem from a fear that eliminating the requirement may cause a reversion to the pre-guidelines days when judges had extremely broad discretion in sentencing. It may also reflect the belief of the appellate courts that strict adherence to the rules reflected in the sentencing guidelines is necessary to avoid the widespread sentencing disparity which was prevalent in those pre-guide- lines days. This Article examines the tension between discretion and rules, and proposes that the requirement of a government motion before a sentencing court can depart downward in recognition of a defendant's substantial assistance can be eliminated without jeopardizing the goals of the sen- * A.B. with distinction from Stanford University 1983; J.D. Boalt Hall School of Law 1989; current law clerk to Chief Judge Harold M. Fong, United States District Court for the District of Hawaii. 1. See infra notes 24-25 and accompanying text. 2. See infra note 45.

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