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Admiring Judge Richard Sullivan (UPDATED)

The Wall Street Journal Law Blog has a post criticizing Judge Richard Sullivan: "To Lawyers Who Represent Cooperators: Fear Judge Richard Sullivan."  The Journal blogger seems upset that a judge actually takes seriously the judicial function.

The United States Constitution was founded up on separation of powers.  No one branch of government should become too powerful.  "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 324 (J. Cooke ed. 1961).  As a member of the Judicial Branch, Judge Sullivan has the power to veto plea agreements.  

Separation of powers, "does not mean that these departments ought to have no partial agency in, or no controul over the acts of each other."  The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961).  Currently plea-bargaining means that the prosecutor gets to decide whether, when, and for how long a person is going to prison.  If a prosecutor doesn't want you to go to prison, she simply won't prosecute you.  If the prosecutor wants you to go to prison for decades, she will overcharge you.  Prosecutors are poweful, but not all-powerful.  Judges have power, too.

In the federal criminal system, judges are supposed to rubber-stamp the prosecutor's plea agreements.  Why?  How is giving complete sentencing discretion to federal prosecutors consistent with the Constitution's separation-of-powers principle?

The WSJ Blog post also notes:

That said, some defense lawyers have suggested to the Law Blog that Sullivan’s conduct may have a chilling effect on cooperation agreements, if criminals believe the government can’t help them get more-favorable treatment by judges. Sullivan declined to comment to the Law Blog.

Good.  Snitch testimony is the most unreliable testimony there is.  Prosecutors, unlike other mortals, can give to a man that which only God can give - time.  

Prosecutors pay snitches in years rather than dollars before telling us that of course the snitch's testimony is reliable.  If you eliminated unreliable eyewitness testimony and snitch testimony, you'd eliminate 90% of wrongful convictions.

Judges have the constitutional edict to exercise their independent judgment.  Sentencing decisions, as a matter of constitutional law, are wholly a judicial function.  That prosecutors - through charging decisions and other manipulation - have been able to abrogate the judicial function hardly means that judges like Richard Sullivan should be criticized for exercising his constitutional authority.

UPDATE: Remember the Pennsylvania judges who sold children into juvenile prisons in exchange for kickbacks from the prison owners?  The local U.S. Attorney's Office gave those judges a too-sweet deal.  U.S. District Judge Edwin Kosik boldly vacated the disgraceful plea agreement.  The United States needs more judges like Kosik and Sullivan.

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