Vanderbilt Law Review

First Page



To mobsters, he is a "rat"; to drug dealers, a "snitch." To school children, he is a "tattletale"; to corporate executives, a "whistle- blower." To cops, he is an "informant"; to prosecutors, a "cooperator." By whatever name he is known, the person who betrays his associates to the authorities is almost universally reviled. In movies, on television, in literature, the cooperator embodies all that society holds in contempt: he is disloyal, deceitful, greedy, selfish, and weak. The cooperator, though, has long been a mainstay of our criminal justice system. For centuries, criminal defendants have received leniency in return for testimony incriminating accomplices and associates. Cooperation has flourished because the participants in the process (primarily prosecutors and cooperators) reap tremendous benefits. Prosecutors want what only cooperators can offer: inside information about criminal organizations. And cooperators want what only prosecutors can offer: leniency, or at least a recommendation for leniency.

Cooperation has never been more prevalent than it is today. And as cooperation has increased, so too have its critics. Not surprisingly, the typical academic view of cooperation is consistent with the cultural view of cooperators: cooperation is almost always seen as an evil-a necessary evil, no doubt, but an evil nonetheless. As a result, cooperation is usually discussed in terms that are starkly utilitarian. The cooperator is given leniency not because he deserves it, but because leniency is a necessary part of the prosecutor's "bargain with the devil." In the language of the marketplace, leniency is the price that a prosecutor must pay to purchase the cooperator's information and services. A criminal's cooperation is valuable-it is worth buying-because the prosecutor can use it to convict other criminals, who are often more culpable or more dangerous than the cooperator. From the prosecutor's perspective, paying the cooperator in leniency is a worthwhile investment because the benefit to the prosecutor (and, by extension, to society) in increased convictions outweighs the cost to the prosecutor (and, by extension, to society) in leniency.

While intuitively appealing and largely accurate, this utilitarian view of cooperation is incomplete. It is true that most participants in the cooperation process-cooperators, prosecutors, law enforcement officers, defense counsel, and judges-view cooperation in utilitarian terms. Yet cooperation also contains hidden, but important, retributive components.