Cynthia Lee

Making Black and Brown Lives Matter: Incorporating Race into the Criminal Procedure Curriculum

The fatal shooting of Michael Brown, an African American teenager, in August 2014 by a White police officer in Ferguson, Missouri, and the death of Eric Garner, an African American man who died after being put into a chokehold by a New York City police officer in July 2014, led to a firestorm of protests under the moniker of “Black Lives Matter.” Many Blacks saw these two deaths and the failure to indict the officers involved as reflecting a lack of concern for Black lives.

Denying the Significance of Race

On February 26, 2012, at approximately 7:17 p.m., George Zimmerman spotted a young Black male in a hoodie walking in his neighborhood (Barry, 2012). Zimmerman thought the person looked suspicious, so he followed him and called 911. Within minutes of the 911 call, George Zimmerman and Trayvon Martin found themselves in a heated scuffle that ended when Zimmerman shot and killed Martin (Sanford Police Department [SPD] Offense Report, 2012).

The Sentencing Court's Discretion to Depart Downward in Recognition of a Defendant's Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement

In this article, Cynthia Lee examines the tension between judicial discretion and the sentencing guidelines established by the Sentencing Reform Act of 1984. Lee argues that a sentencing court should not require a government motion before departing downward in recognition of a defendants substantial assistance in the investigation or prosecution of another person. In Part One, Lee provides the historical background leading to the creation of the sentencing guidelines, which were enacted to curb the sentencing disparity resulting from broad judicial discretion. In Part Two, she summarizes the district and appellate court interpretations of 18 U.S.C. Subsection 3553(e) and Subsection 5K1.1 of the guidelines. While appellate courts generally have not allowed downward departures without a government motion, some district courts have either (1) treated letters regarding the defendants cooperation from the government to the court as the functional equivalent of a government motion; or (2) imposed a duty to act in good faith on the government in providing a detailed statement of any assistance actually rendered by the defendant. In Part Three, Lee recommends elimination of the government motion requirement. The government motion requirement gives the prosecutor - who is not an unbiased player in the sentencing process - enormous discretion to determine the defendants sentencing. Professor Lee argues that this discretion should rest with the judge, and that the sentencing court should weigh the governments assessment of the defendants assistance against the evidence presented by the defendant.