This essay begins with a brief analysis of the panel and en banc opinions in Sealed Case and Singleton, and then turns to the more arresting question of whether the panel decisions were transitory aberrations or something more. Particularly if one considers Singleton and Sealed Case together with the Sentencing Commission's staff report on substantial assistance practice (the “Maxfield - Kramer Report”), it is difficult to escape the conclusion that unease with the current substantial assistance regime is growing. Unlike many observers, I view §5K1.1 as a very good thing, an invaluable prosecutorial tool against group criminality, but a tool that federal prosecutors are in danger of losing or having blunted in part due to their own indiscipline in employing the discretion the law now bestows on them. This essay argues that “attention must be paid” to substantial assistance by those in authority at the Justice Department, and that if the Department fails to monitor its own practices and practice self-restraint, others are likely to impose restraints that will prove far less palatable.
Frank O. Bowman III, Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, and the Maxfield-Kramer Report, 12 Fed. Sent. R. 45 (1999)