In "Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack-Cocaine and Powder-Cocaine Cases," in the September 2007 edition of Justice Quarterly, Richard Hartley, Sean Maddan, and Cassia Spohn provide essential statistics on prevalence of the "substantial assistance" plea, information highly relevant to the current resolution. They write:
Data provided by the United States Sentencing Commission reveal that approximately 20 percent of all offenders sentenced nationwide receive departures for substantial assistance; for fiscal year 2002, the departure rate was 17.4 percent (United States Sentencing Commission, 2004, p. 51). However, the districts vary widely in the percentage of cases receiving substantial assistance departures, from a high of 46.3 percent in the Middle District of Alabama to a low of 5.2 percent in the District of Rhode Island (United States Sentencing Commission, 2004: table 26). There also is considerable variation in the departure rates for different types of offenses: 27.4 percent of the offenders convicted of drug trafficking received a substantial assistance departure, compared to only 17.8 percent of the offenders convicted of fraud, 14.9 percent of the offenders convicted of robbery, and 12.2 percent of the offenders convicted of firearms offenses (United States Sentencing Commission, 2004: table 27). The mean percentage discount in the sentence as a result of a departure for substantial assistance also varied for these types of offenses. The mean discount was 46.7 percent for drug trafficking, 99.8 percent for fraud, 35.1 percent for robbery, and 48.9 percent for firearms offenses; the discount for all offenses was 50 percent (United States Sentencing Commission, 2004: table 30).There's much more in the article, which I'll analyze in due time. Suffice it to say that some hard-to-find statistics are now readily available to the interested LDer.
The fact that substantial assistance departures are common, coupled with the fact that offenders receive a significant sentence discount as a result of this type of departure, suggests that critics' concerns about the reappearance of disparity and discrimination under the federal sentencing guidelines are not unfounded. These highly discretionary and largely unreviewable decisions (Maxfield & Kramer, 1998), which shift the locus of decision-making from the judge to the prosecutor, may reflect the influence of legally irrelevant factors such as the offender's race/ethnicity, sex, or socioeconomic status. As Secunda (1997, p. 1269) notes, "the unsurprising effect of the accumulation of unguided discretion [in departures for substantial assistance] may be the defeat of the principal purpose of the Guidelines: increased fairness and uniform sentencing for similarly situated offenders."
*There are other considerations, too. Read the guidelines here.