Nov 2, 2007

important "substantial assistance" statistics

Under section 5K1 of the United States Sentencing Guidelines, a defendant can receive an unrestricted downward departure in exchange for useful, truthful, reliable, and timely testimony against another defendant.*

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).

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'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.

*There are other considerations, too. Read the guidelines here.


Jim Anderson said...

I've deleted Aaron's comment, not because he said something out-of-place, but because he left his email address in it. That's how spammers getcha.

For interested readers: if you wish to contact me about an LD question, my email address is posted at right. Otherwise, why not ask it here? That way others can chip in.

Anonymous said...

I have to say, this really is amazing. After hours of research, this seems to be the only statistical evidence I found pertaining strictly to this resolution.

Anonymous said...

How could i back up trying to say that the plea bargain encourages framing?

Jim Anderson said...

I would argue that such a claim is insignificant in the larger scheme of things, for two reasons:

1. Most plea bargains happen after-the-fact. Most people who are arrested don't plan to bargain in exchange for testimony. It is their "out," not their motive.

2. For the plea deal to go through, the testimony has to be substantial and useful. Otherwise, the government can rescind the plea, since it has to make the motion for the plea in the first place.

There are other, better arguments. I'd stay away from framing, unless it's a minor contention.

Anonymous said...

I'm confused on what assistance departure is. Does this mean that only 20% of plea bargaining is for testimony? That would be a very useful statistic. If that is not what this statistic is saying, what is it saying, and what percentage of plea bargaining is for testimony?


-LD n00b

Jim Anderson said...


The "substantial assistance" plea is the plea bargain in exchange for testimony, most often, but may also include having the guilty party wear a wire or otherwise cooperate in an ongoing investigation. So, this isn't 100% accurate, but gives a good ballpark figure for how many plea bargains are in exchange for testimony. Roughly 20%, or 1/5.

LD n00b said...


-LD n00b