concurring:
I concur generally in the court’s opinion but write separately to emphasize two points. First, I do not agree with the implication that because the Congress could make a convict’s assistance entirely irrelevant to the sentence he receives, once the Congress (or the Sentencing Commission) has decided that assistance is to be a factor in sentencing, the Due Process Clause of the Fifth Amendment has nothing to say about the procedures that must be used to implement that decision. More specifically, the requirement of due process limits the Congress’s authority to delegate to the prosecutor the job of finding the facts and making the judgment that the legislature deems relevant to sentencing. For example, even though the Constitution does not require the Congress to take account of whether a convict was ignorant of the law he violated, it seems unlikely that the Congress could constitutionally condition a reduction in sentence upon the prosecutor’s unreviewable judgment on that issue.
Rather, I believe that § 5K1.1 is constitutional, if it is, because (1) it involves a very narrow delegation of “sentencing” authority to the prosecutor, concerning a matter within his personal experience; (2) he has a strong incentive not to abuse that authority; and (3) he would likely be unable or unwilling to use the authority at all if his decisions were ordinarily subject either to judicial review or to the due process protections applicable to court proceedings. See Wayte v. United States, 470 U.S. 598, 607-09, 105 S.Ct. 1524, 1530-32, 84 L.Ed.2d 547 (1985) (court will not examine decision whether to prosecute except for intentional discrimination on a basis, such as race, religion, or the defendant’s exercise of a statutory or constitutional right, that would violate the equal protection norm implicit in the Due Process Clause of the Fifth Amendment).
Second, even in these particular circumstances, the proper resolution of the constitutional issue is far from clear. In addition to the cases concerning due process in sentencing, which the court cites, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), suggests that granting the prosecutor unreviewable authority to make a judgment that could decrease the convict’s sentence may deny him due process. Noting that “[wjhether any procedural protections are due depends on the extent to which an individual will be condemned to suffer grievous loss,” the Court found that parole revocation deprives the convict of a constitutionally protected liberty interest and is therefore subject to various procedural protections. Id. at 481, 92 S.Ct. at 2600 (internal quotation marks and citation deleted). Moreover, in the course of reasoning that “the full panoply of rights due a defendant in [a criminal] prosecution [do] not apply to parole revocations,” the Court noted that “[p]arole arises after the end of the criminal prosecution, including imposition of sentence,” id. at *363480, 92 S.Ct. at 2600. See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979) (recognizing “crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires”); id. at 9-10, 99 S.Ct. at 2105 (recognizing distinction between “retrospective factual question” and “informed prediction[ ]”); and Mistretta v. United States, 488 U.S. 361, 391 n. 17, 109 S.Ct. 647, 664 n. 17, 102 L.Ed.2d 714 (1989) (vesting in Executive Branch rulemaking authority regarding sentencing would raise constitutional difficulties).
The narrowness of the sentencing authority delegated to the prosecutor by § 5K1.1 and the virtual unanimity of the circuits in upholding it as constitutional, however, together lead me to join the court in holding that the district court’s judgment must be reversed. Nonetheless, the difficulty of the issue, the magnitude of the stakes, and the superficiality of the analysis underlying several of the circuits’ decisions give reason to hope that the Supreme Court will at some point evaluate § 5K1.1 in the light shed by its prior teachings on the requirements of due process in the sentencing context.