The opinion of the court was delivered by: Mihm, District Judge.
On September 21, 1989, Defendant Kimberly Curran came before
this Court to be sentenced. She had previously pleaded guilty
to conspiracy to possess with intent to distribute cocaine. In
return for her plea of guilty, charges of distribution of
cocaine and possession with intent to distribute cocaine had
The Sentencing Guidelines provided a sentencing range of 57
to 63 months, while the statute provided a mandatory minimum
sentence of five years. 21 U.S.C. § 841(b)(1)(B) and 846. This
Court determined, however, that the Defendant had provided
"substantial assistance" to the Government and that statutory
and Sentencing Guideline provisions dealing with reductions for
substantial cooperation were unconstitutional. A sentence of 48
months, lower than either the Guideline range or the statutory
minimum, was imposed. This opinion is intended to supplement
and explain the Court's oral findings on that date.
In spite of the Government's position that Defendant Curran
had rendered substantial assistance to them, no motion was
filed pursuant to either 18 U.S.C. § 3553(e) or § 5K1.1 of the
Sentencing Guidelines, requesting the Court to impose a
sentence below the mandatory minimum sentence or below the
The reason given by the U.S. Attorney for his decision not to
file such a motion was that Defendant Curran did not meet the
U.S. Attorney's profile for the filing of such a motion.
Specifically, the profile requires that, in order to be
considered for such a motion, the defendant must have (among
other things) participated in covert operations as part of her
cooperation. Kimberly Curran's cooperation did not involve any
18 U.S.C. § 3553(e) provides in pertinent part:
Upon motion of the Government, the court shall
have the authority to impose a sentence below a
level established by statute as minimum sentence
so as to reflect a defendant's substantial
assistance in the investigation or prosecution of
another person who has committed an offense.
Section 5K1.1 of the Sentencing Guidelines authorizes a
similar departure from the guideline range:
Upon motion of the Government stating that the
defendant has made a good faith effort to provide
substantial assistance in the investigation or
prosecution of another person who has committed an
offense, the court may depart from the guidelines.
The Court finds that both of these provisions are
unconstitutional because they are in violation of a Defendant's
rights to substantive and procedural due process.
The right to substantive due process means that the
Government cannot take actions which on the whole runs counter
to "some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."
Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332,
78 L.Ed. 674 (1934).
What can be more basic to the scheme of constitutional rights
precious to us all than the right to fairness throughout the
proceedings in a criminal case?*fn1 The traditions of the
judicial process in this country are based upon the concept of
the adversarial process, a process which is designed to allow
both sides to argue to a neutral decision maker. Yet the
provisions at issue here operate at complete odds with that
concept. The defendant cannot approach the decision maker with
argument on an issue relevant to length of sentence.
See, 28 U.S.C. § 994(n). The court cannot consider the issue
sua sponte but must depend upon the Government to raise it; in
fact, sometimes, such as in this case, the provisions require
the Court to ignore facts of which it already has knowledge and
which are indisputably relevant. This process thus not only
handcuffs the defendant but also impacts upon the neutrality of
the decision maker. The results of such a proceeding simply
cannot comport with traditional notions of justice fundamental
to our system.
If Congress had merely said that anyone who is convicted of
this offense will serve a mandatory minimum sentence of five
years, with no exceptions, that would have been constitutional;
Congress' power to impose minimum mandatory sentences has
withstood numerous constitutional challenges. See, e.g., United
States v. Smith, 602 F.2d 834 (8th Cir. 1979). (See also cases
cited herein at page 7 upholding Guidelines). But when Congress
added the caveat of § 3553(e), it opened the door to a
challenge based on substantive due process. It is not that a
mandatory minimum sentence is offensive as a matter of law, nor
that the United States Attorney's profile itself offends our
collective sense of justice. The problem presented here is more
basic, more fundamentally troubling. A scheme of ordered
liberty is diminished when one party's participation in a fair,
adversarial process is limited, as the defendant is limited by
§ 3553(e) and § 5K1.1.
This Court has always believed that cooperation with the
government is something to be encouraged, and drug enforcement
is one area where that is doubly true. The Court does not
intend that this ruling interfere with the legitimate
decision-making prerogative of the executive branch. But where
a statute like 18 U.S.C. § 3553(e) or a regulation like § 5K1.1
withholds from the defendant the right to present to the court
an issue so intimately related to the appropriate length of
sentence, then such a statute or regulation must be struck down
as fundamentally unfair.
The final arbiter of the exercise of prerogatives of this
nature must rest with the Court. Either side must be able at
least to raise the possibility ...