Retribution for Rats: Cooperation, Punishment, and Atonement

With the rise of determinate sentencing in the past fifteen years, more and more defendants have sought to reduce their sentences by turning against their accomplices and "cooperating" with the prosecution. This now thriving cooperation system is almost always seen, even by its defenders, as an evil - a necessary evil, no doubt, but an evil nonetheless. Thus, it is usually discussed in terms that are starkly utilitarian: the prosecutor strikes a "bargain with the devil" to achieve a greater social good. This article argues that the utilitarian view of cooperation is incomplete. Cooperation also contains hidden, but important, retributive components that provide essential insights into the cooperation process. The retributive aspects of cooperation manifest themselves in two ways. First, because cooperators are viewed with such disdain and because cooperators often find themselves alienated and ostracized from communities they care about, cooperation can be punishment in itself. The cooperator who suffers this extra punishment, then, may deserve less traditional punishment than a similarly situated non-cooperating defendant. Second, for some cooperators, cooperation can be a vehicle through which the defendant experiences atonement. The article argues that cooperation can bring a defendant through a process of expiation that both lessens his desert and increases his odds of eventually reintegrating into the community. Viewing cooperation through the lens of punishment and atonement also has important implications for how prosecutors should evaluate and use cooperators, and for how judges should sentence cooperators. Those practical implications are explored in the last part of the article.