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Reductions in time to be served[edit]

Substantial assistance to authorities can be grounds for significant reductions in federal criminal justice sentences in the United States. The substantial assistance departure allows for a downward departure from the Guidelines range, or below the statutory minimum in cases involving mandatory sentences. [1] The departure was established with the passage of the Anti-Drug Abuse Act of 1986 in an effort to more effectively fight drug crime by encouraging defendant cooperation with the government. [2] The Federal Rules of Criminal Procedure and U.S. Sentencing Guidelines require that the prosecution file a motion allowing the reduction. [1] [3] The court is not required to grant the reduction, and may decline to do so if it deems the information provided by the defendant to be untruthful, incomplete, unreliable, insignificant, not useful, or untimely. There is no penalty for refusal to assist authorities. [1]


Departures upward or downward from the guideline range are appropriate for cases that deviate from the heartland of cases.

Grounds for departure include:

  • Substantial assistance to authorities (§5K1.1) [1]

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant’s assistance.


Limited ability to individualize sentences[edit]

The primary argument made against the federal sentencing guidelines is that they all but eliminate judicial discretion to fashion sentences to fit the offender. [4] [5] [6] [7] Sentencing guidelines, in general, concern themselves with the elements of the offense, rather than the unique characteristics of the offender—age; family and community ties and responsibilities; education and employment; and mental, emotional, or physical conditions, including drug or alcohol dependence—which results in defendants of substantially different backgrounds receiving the same level of punishment. [4] [5] [6] [7] Critics of the determinate sentencing system of the United States argue that it leads to inflexibility in sentencing a minor participant to a proportionate sentence and in sentencing an offender who is relatively harmless and unlikely to reoffend to a sentence that is appropriate to that individual. [4] [5] [6] [7]

Continuing sentencing disparities[edit]

The Sentencing Guidelines were developed to "ensure proportionality, uniformity, and consistency in sentencing." [7] It has been argued, however, that the Sentencing Guidelines actually increase unwarranted sentencing disparities. Joseph S. Hall writes, "Factors such as whether or not the defendant can afford a skilled attorney capable of making innovative legal arguments or performing detailed factual investigations have a profound influence on a defendant's sentence." [8] Extralegal offender characteristics, such as an offender's age, race, or gender, also seem to have profound effects on sentence outcomes. [5] [7] [9] [10] Disparate treatment of defendants along gender, racial, and socioeconomic lines is what the sentencing guidelines were intended to dispel. However, various studies have shown that several important presentence decisions tend to be made based on gender and racial stereotypes. [5] [7] [9] [10] Researchers Shermer and Johnson studied federal defendants prosecuted in 2001, and found that males were only .68 times as likely as females to receive a charge reduction resulting in the avoidance of a mandatory minimum. [9] Additionally, researchers Cano and Spohn studied 1515 cases sentenced between 1998 and 1999 in three U.S. district courts, and found that females were 1.806 times as likely as males to receive the substantial assistance departure, and that U.S. citizens were 2.268 times as likely as non-U.S. citizens to receive the departure. [7]

One reason for the continuing disparities, according to some critics, is that sentencing guidelines have merely shifted discretion from judges to prosecutors. [5] [9] [10] Under the sentencing guidelines, prosecutors have extensive ability to direct sentence outcomes through their charging decisions. [5] [9] [10] Prosecutors have the discretion to charge defendants with offenses of varying offense severity scores, depending on the interpretation of the facts. William J. Stuntz claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing.” [11] These charging decisions can be especially important if the prosecutor charges a defendant for a lesser offense than the one for which he was arrested when the arresting offense would have merited a mandatory minimum sentence. In such cases, the resulting sentence discount can be substantial. Several studies suggest that prosecutors tend to make these charging decisions based on their perceptions of offender blameworthiness, dangerousness, and risk of reoffending. [5] [7] [9] [10] Thus, charge reductions are disparately awarded to those offenders that prosecutors perceive to be least blameworthy, least dangerous, and least likely to reoffend. Under the sentencing guidelines, prosecutors also have a great deal of power to extract guilty pleas. [11] William J. Stuntz writes, “Plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats." The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009,[12] a rise attributed largely to the Sentencing Guidelines.

Injustices for low-level offenders[edit]

Also controversial is the dominance of drug quantity in determining sentences for drug crimes. Some have argued that the emphasis placed on drug quantity results in unjust punishments for low-level, nonviolent drug offenders. [4] [6] This group of critics argues that because drug quantity determines the offense level, offenders of substantially different roles in the offense receive largely the same punishments, which is inherently unfair. [4] [6] Researcher Sevigny studied the cases of 1671 federal inmates who were convicted of drug crimes to determine how drug quantity and role in the offense (importing, producing, laundering, wholesaling, retailing, and possessing) affected sentence lengths. [6] Results of the study revealed that 95 months separated the sentences for quantity-based offense levels 6 through 38, but that only 14 months separated the sentences for all functional roles. [6]

The substantial assistance departure has also drawn criticism. Critics of the departure argue that it unfairly benefits those who play large roles in the offense. [4] Typically, those defendants convicted in conspiracy crimes (crimes involving an agreement between at least two people to commit a crime or arrive at legal ends through illegal means) who were least involved in the offense lack the knowledge necessary to aid the government in the prosecution of other offenders. [4] Often, these types of minimally involved offenders are women whose boyfriends, brothers, or fathers are more highly involved in crime. [4] These “women of circumstance” are charged in conspiracies mainly through their familial, financial, or romantic association with the men in their lives. [4] Because of their low-level involvement in the offense, they generally have little, if any, information that they can provide to the government that would be viewed as providing substantial assistance. [4] High-level, and thus more culpable, offenders have the knowledge and experience to actually aid the government in the prosecution of others. [4] Thus, it is often the case that higher-level, more blameworthy defendants will ultimately receive lower sentences than lower-level, less blameworthy defendants because of their increased access to the substantial assistance departure. [4]

Other issues[edit]

Other controversial aspects of the Sentencing Guidelines include the 100:1 disparity between treatment of crack and cocaine (which has been amended to 18:1 by the Fair Sentencing Act of 2010) and the immigration guidelines which call for hefty enhancements for illegal re-entrants with prior felony records, despite the prior offenses already being taken into account via the Criminal History Category.[1] [13] Heavy penalties for child pornography offenders have also come under fire. Many judges are refusing to apply the Guidelines in these cases.[14]

See also[edit]


  1. ^ a b c d e United States Sentencing Commission. (2012). Guidelines Manual. Retrieved from
  2. ^ Lupkin, J. D. (1991). 5K1.1 and substantial assistance departure: The illusory carrot of the federal sentencing guidelines. Columbia Law Review, 91(6), 1519-1546. doi: 10.2307/1123068
  3. ^ Correcting or Reducing a Sentence. 7, Federal Rules of Criminal Procedure, Rule 35(b). Retrieved from
  4. ^ a b c d e f g h i j k l Gaskins, S. (2004). “Women of circumstance”—the effects of mandatory minimum sentencing on women minimally involved in drug crimes. American Criminal Law Review, 41(4), 1533-1553.
  5. ^ a b c d e f g h Hartley, R. D., Maddan, S., & Spohn, C. C. (2007). Prosecutorial discretion: An examination of substantial assistance departures in federal crack-cocaine and powder-cocaine cases. Justice Quarterly, 24(3), 382-407. doi: 10.1080/07418820701485379
  6. ^ a b c d e f g Sevigny, E. L. (2009). Excessive uniformity in federal drug sentencing. Journal of Quantitative Criminology, 25(2), 155-180. doi: 10.1007/s10940-009-9064-z
  7. ^ a b c d e f g h Cano, M.V., & Spohn, C. (2012). Circumventing the penalty for offenders facing mandatory minimums: Revisiting the dynamics of “sympathetic” and “salvageable” offenders. Criminal Justice and Behavior, 39(3), 308-332. doi: 10.1177/ 0093854811431419
  8. ^ Hall, J. S. (1999). Guided to injustice? The effect of the sentencing guidelines on indigent defendants and public defense. American Criminal Law Review, 36(4), 1331-1370.
  9. ^ a b c d e f Shermer, L. O., & Johnson, B. D. (2010). Criminal prosecutions: Examining prosecutorial discretion and charge reductions in U.S. federal district courts. Justice Quarterly, 27(3), 394-430. doi: 10.1080/07418820902856972
  10. ^ a b c d e Ulmer, J. T., Kurlycheck, M. C., & Kramer, J. H. (2007). Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime and Delinquency, 44(4), 427-458. doi: 10.1177/0022427807305853
  11. ^ a b Stuntz, W. J. (2004). Plea bargaining and criminal law's disappearing shadow. Harvard Law Review, 117(8), 2548–2569. doi: 10.2307/4093405
  12. ^ United States Sentencing Commission. (2009). Guilty pleas and trial rates: Fiscal years 2005-2009. Sourcebook of Federal Sentencing Statistics. Retrieved from
  13. ^ Maxfield, L. D., & Hallas, H. (2003). Survey of Article III Judges on the Federal Sentencing Guidelines. Retrieved from
  14. ^ Cardona, F. (2009, Nov 29). Federal judges argue for reduced sentences for child-porn convicts. The Denver Post. Retrieved from

External links[edit]

Category:United States federal law Category:United States sentencing law *