June 01, 2010

Thanks to Sentencing Law and Policy for making Attorney General Eric Holder's new charging policy memo available here. The blog discusses reactions to Holder's new guidelines, which are described as providing more flexibility to prosecutors not to argue for mandatory minimum sentences. Of note for this blog's purposes, Holder's memo reiterates DOJ's practice of considering a defendant's cooperation during the initial charging decision. As the memo states: "In all cases, the charges should fairly represent the defendant's criminal conduct, and due consideration should be given to the defendant's substantial assistance in an investigation or prosecution." As I've argued elsewhere, this practice of charge reduction for cooperation is central to the pervasiveness and secrecy of the snitching process: a cooperating suspect will be charged differently, or perhaps not at all, in ways that may leave no paper trail. The U.S. Sentencing Commission keeps track of cooperation departures at sentencing, but charging decisions take place long before a defendant ever comes before a judge to be sentenced.

One consequence of this practice is that cooperation has become a large source of sentencing disparity, the very problem the Sentencing Guidelines were designed to alleviate. For example, an article in the June edition of Justice Quarterly concludes that substantial assistance downward departures are a significant source of inter-judge disparity: "the sentencing discounts that similarly situated defendants get for providing substantial assistance vary upon the judge handling the case," making substantial assistance departure decisions "a wellspring of sentencing disparity." Amy Anderson & Cassia Spohn, Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes, 27 Justice Quarterly 362 (2010). An earlier Sentencing Commission study found that prosecutorial offices reward cooperation very differently as well. In other words, the uniformity offered by determinate sentencing schemes--treating similarly situated offenders similarly-- does not cure the significant disparities introduced by unregulated cooperation.