Substantial Assistance Departures Research Articles

Preferences Toward Leniency under Mandatory Criminal Sentencing Guidelines: Role-in-the-Offense Adjustments for Federal Drug Trafficking Defendants

Abstract This paper tests whether judges and/or prosecutors manipulated mandatory federal sentencing guidelines to shorten prison sentences. It finds that, among drug traffickers convicted under the federal guidelines’ former mandatory sentencing system, those who faced harsher underlying charges were found to have played significantly lower-level roles in their conspiracies. This is consistent with guideline manipulation to help defendants facing longer sentences. Women received significantly larger role-in-the-offense reductions related to harsher underlying charges than men. Effects were insignificant if defendants were eligible for lower-cost alternative methods of sentence reduction, namely substantial assistance departures and safety-valve reductions from mandatory minimum sentences.

'Reasonably Predictable': the Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures

Within the realm of expanded judicial discretion are sentence reductions based on a defendant’s cooperation with the government, namely, where there are no statutory, mandatory minimums. Cooperation is one of several bases for sentencing departures. Prior to the Supreme Court's decision in United States v. Booker, which rendered the Sentencing Guidelines advisory rather than mandatory, judges had discretion to depart from the Sentencing Guidelines where the government made a § 5K1.1 motion after receiving substantial assistance, or cooperation, from a defendant. Post-Booker cooperation departures are particularly fascinating because they are a clear illustration of the manner in which Booker may expand a judge’s power to “do what’s right,” while simultaneously limiting a prosecutor’s discretion by allowing the judge to depart from the Sentencing Guidelines without a motion from the government. As this Comment illustrates, however, many appellate courts are reluctant to affirm sentences where the district court judge has exercised this discretion in the context of cooperation departures. Many courts have failed to analyze how Booker impacts the mechanics of § 5K1.1 cooperation departures or choose not to address the question. Appellate courts have been particularly reluctant to affirm sentences where the sentence is lower than that which is recommended under the Guidelines. Nonetheless, several courts have used § 3553(a), the statute describing the offender characteristics that judges should consider at sentencing, as a mechanism for granting sentences below the Sentencing Guidelines to account for an offender’s cooperation.

The Direct and Indirect Effects of Offender Drug Use on Federal Sentencing Outcomes

Objectives The federal sentencing guidelines constrain decision makers’ discretion to consider offenders’ life histories and current circumstances, including their histories of drug use and drug use at the time of the crime. However, the situation is complicated by the fact that judges are required to take the offender’s drug use into account in making bail and pretrial detention decisions and the ambiguity inherent in decisions regarding substantial assistance departures allows consideration of this factor. In this paper we build upon and extend prior research examining the impact of an offender’s drug use on sentences imposed on drug trafficking offenders.

Mitigating the Effect of a Criminal Record at Sentencing

The assumption in courts and sentencing research is that recidivists—or, defendants with a criminal record who are facing new charges—are considered more blameworthy and perceived as more dangerous by courtroom decision makers, including prosecutors. Nagel and Schulhofer suggested that defendants with a prior record may be viewed as sympathetic by federal prosecutors because of “human factors,” leading to substantial assistance departures in these cases. We conceptualize human factors as local life circumstances, or temporally bound situations that make attributional statements about the defendant. We operationalize local life circumstances in terms of employment status, financial responsibility to dependents, and drug use, and determine whether these circumstances affect the likelihood of a receiving a substantial assistance departure among defendants with an established record of criminality. In addition to case characteristics, employment and drug use increased the likelihood of a prosecutor-sponsored sentence departure among recidivists in federal court.

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.

Circumventing the Penalty for Offenders Facing Mandatory Minimums

Although sentencing of drug offenders in federal courts is complicated by minimum penalties, which trump the guidelines, the mandatory penalties can be avoided if offenders receive substantial assistance departures. Nagel and Schulhofer contend that substantial assistance departures are used to mitigate the sentences of “sympathetic” and “salvageable” offenders. The authors tested this contention, using data on drug offenders facing mandatory minimum sentences in three U.S. district courts. Results reveal that substantial assistance departures are used to reduce the sentences of certain types of offenders facing mandatory minimum penalties: females, U.S. citizens, employed persons, those with some college, those with dependent children, and those who played a minor or minimal role in the offense. Findings also revealed that racial-ethnic differences among male offenders were masked by the racial-ethnic similarities among female offenders in the full model and that the effect of gender was confined to Black and Hispanic offenders.

The Joint Effects of Offender Race/Ethnicity and Gender on Substantial Assistance Departures in Federal Courts

Research on the federal sentencing process has demonstrated that, the sentencing guidelines notwithstanding, outcomes are affected by legally irrelevant offender characteristics. Using data on offenders convicted of drug offenses in three U.S. district courts, we build on and extend this research. We examine the main and interactive effects of offender race/ethnicity and gender on the likelihood of receiving a downward departure for providing substantial assistance and on the magnitude of the sentence discount given to offenders who receive these departures. Our findings indicate the Black and Hispanic male offenders are treated more harshly than all other offenders. Our findings also indicate that there are no differences between female offenders of any race/ethnicity and White male offenders or between the three groups of female offenders. We suggest that prosecutors and judges use the discretion inherent in the substantial assistance departure to circumvent the guidelines and to fashion more appropriate sentences for sympathetic and salvageable offenders.

U.S. ATTORNEYS AND SUBSTANTIAL ASSISTANCE DEPARTURES: TESTING FOR INTERPROSECUTOR DISPARITY*

An important and highly discretionary component of the federal sentencing guidelines is the downward departure for providing substantial assistance. Critics charge that the substantial assistance departure, which requires a motion by the prosecutor, may produce the type of unwarranted sentencing disparity that the guidelines were intended to eliminate. Research reveals, for example, that jurisdictional variations are evident in the use of substance assistance departures (Johnson, Ulmer, and Kramer, 2008; Nagel and Schulhofer, 1992), and that the likelihood of receiving the departure is affected by legally irrelevant offender characteristics, which include race, ethnicity, and gender (Mustard, 2001). The purpose of this article is to extend this research by exploring the degree to which decisions regarding substantial assistance departures vary across prosecutors. Using data on offenders sentenced in three U.S. district courts and a multilevel modeling strategy, we investigate whether interprosecutor disparity exists in the likelihood of substantial assistance departures and in the criteria that prosecutors use in deciding whether to file a motion for a substantial assistance departure. Findings indicate that significant interprosecutor variation remains after taking into account offender characteristics, case characteristics, and the district in which the case is adjudicated.

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures.Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs… ‐ An assistant U.S. attorney ‐

Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack‐Cocaine and Powder‐Cocaine Cases

Recently there has been a call for research that explores decision‐making at stages prior to sentencing in the criminal justice process. Particularly research is needed under a determinate sentencing system where judicial dispositions are usually restricted by guidelines, which increases the importance of earlier decision‐making stages. As an answer to this call, and in an attempt to build on currents studies on the effects of departures as an intervening mechanism, and a source of unwarranted disparity, this study explores federal sentencing data on offenders convicted of crack‐cocaine and powder‐cocaine offenses. Although decision‐making of all criminal justice actors generally, and prosecutors specifically, has been the subject of much research, studies have yet to resolve the nature and outcome of their “autonomous” discretion. This autonomy becomes especially salient regarding prosecutorial decisions for substantial assistance departures. In deciding who receives a substantial assistance departure, the prosecutor has carte blanche power.

Sentencing Decisions in Three U.S. District Courts: Testing the Assumption of Uniformity in the Federal Sentencing Process

Studies of the federal sentencing process typically focus on sentencing decisions at the national level. These studies assume, either explicitly or implicitly, that there is little interdistrict variation in case processing policies and procedures and that findings regarding sentence outcomes at the national level therefore reflect the reality of decisionmaking in each of the U.S. District Courts. This study uses data on offenders sentenced in three U.S. District Courts to test the assumption of national uniformity in the federal sentencing process. The results of the analysis revealed that the odds of incarceration did not vary among the three districts and that sentence length did not vary at all between Nebraska and Minnesota, but varied by eight months between Nebraska and Southern Iowa and between Minnesota and Southern Iowa. There were, on the other hand, significant interdistrict differences in sentence discounts for downward departures and departures for substantial assistance. Further analysis revealed that most of the interjurisdictional differences in prison sentences were generated by cases in which offenders received substantial assistance departures.

Prosecutorial Discretion and Real-Offense Sentencing: An Analysis of Relevant Conduct under the Federal Sentencing Guidelines

The primary objective of the federal sentencing guidelines is to reduce judicial discretion and unwarranted disparity by prescribing like sentences for like defendants convicted of the same offense. The guidelines are based on real-offense sentencing, which links relevant conduct or actual offense behavior to the sentencing process. This study analyzes the indictment stage where the charging decisions by the federal prosecutor in conjunction with relevant conduct are first conceived. Our major finding is that the number of counts within the indictment has a statistically significant effect on the length of sentence, the magnitude of the discount for downward departures, and the ratio of the difference between the presumptive sentence and the sentence discount. The number of counts has no effect on the offender’s likelihood of receiving either a downward departure or a substantial assistance departure. This suggests that offenders convicted of the same crime do not necessarily receive the same sentence.

Substantial Assistance and Sentence Severity: Is There a Correlation?

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in a district. A high rate of SA does not mean that sentences are generally more lenient because SA departures are only one factor in the complex system that determines sentence severity. SA departures are among the most visible mechanisms, but their impact is typically blunted by district-specific practices in which prosecutors and judges respond to each other's choices in ways that even out inter-district differences and mitigate the disparities that might otherwise result from wide variation in SA departures.

Varied Approaches to Teaching Sentencing

Research Article| May 01 1998 Varied Approaches to Teaching Sentencing Daniel J. Freed Daniel J. Freed Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (1998) 10 (6): 307–309. https://doi.org/10.2307/20640107 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Daniel J. Freed; Varied Approaches to Teaching Sentencing. Federal Sentencing Reporter 1 May 1998; 10 (6): 307–309. doi: https://doi.org/10.2307/20640107 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. Article PDF first page preview Close Modal You do not currently have access to this content.

5K1.1 and Substantial Assistance Departure: The Illusory Carrot of the Federal Sentencing Guidelines

5K1.1 and Substantial Assistance Departure: The Illusory Carrot of the Federal Sentencing Guidelines