Studying the results of the US Sentencing Guidelines, particularly as they relate to "substantial assistance" pleas, Albert W Alschuler, in "Disparity: The Normative and Empirical Failure of the Federal Guidelines," in Stanford Law Review, Oct. 2005, writes,
The racial gap in federal sentences cannot entirely be explained by the 1-to-100 crack/powder ratio and other legally relevant variables... [P]rosecutors seek "substantial assistance" departures for blacks and Latinos less a often than for whites, and this disparity persists when researchers do their best to control for legally relevant variables. The disparity in substantial assistance departures may reflect the lesser ability of blacks and Latinos to provide information useful to prosecutors, the greater reluctance of blacks and Latinos to provide this information (because of their greater loyalty to co-offenders or their greater fear of reprisals), or the prosecutors' racial favoritism. When minority defendants do receive substantial assistance departures, the departures they receive are smaller than those received by whites....Furthermore, more generally, pleas vary across federal districts.
A gender gap in federal sentences preceded the Guidelines. The time served by men in federal prisons before the Guidelines exceeded that served by women by about nine months or 50%. In the years since the Guidelines were implemented, the gender gap has grown. The time served by men increased 96% after the Guidelines while that served by women increased 75%. Men now serve 51 months on average and women 28.87 The previous nine-month gender gap has grown to 23 months.
Unlike the growing racial gap in federal sentences, the increasing gender gap cannot be largely explained by statutory innovations like the crack/powder disparity or other legally relevant variables. The Sentencing Commission reported that, after controlling for relevant variables, men were twice as likely to be imprisoned for drug crimes as women. Prison sentences in drug cases and other cases were twenty-five to thirty percent longer for men. Women received more substantial downward departures.
When a prosecutor seeks a substantial assistance departure, the bottom is the limit. No statute or guideline constrains the extent of the defendant's reward. Departures for substantial assistance occur in about 17% of all cases and other departures in about 18% more. Substantial assistance departures, however, are larger and account for twice as much variation in federal sentences (4.4% of all variation versus 2.2%).The frequency of substantial assistance departures varies greatly from one district to the next. Jeffery T. Ulmer concurs. In "The Localized Uses of Federal Sentencing Guidelines in Four U.S. District Courts: Evidence of Processual Order," found in Symbolic Interaction, Vol. 28, Issue 2, 2005, he writes,
The size of substantial assistance departures varied between districts (as both the qualitative and quantitative data showed), and more interestingly, the definition of “substantial assistance to law enforcement” varied markedly between districts. Northland and Northeast Districts had relatively broad and liberal definitions of what constituted substantial assistance, and in both districts, the substantial assistance provision of the guidelines was used to both generate useful information for future prosecutions and ameliorate guideline sentences seen as too harsh. On the other hand, Western District had a much more restrictive definition of substantial assistance.Are these differences unjust? That's for an Aff to argue--and for a Neg to rebut.