Circumventing the Penalty for Offenders Facing Mandatory Minimums

• Author: Cassia Spohn,Mario V. Cano
• Published date: 01 March 2012
• Date: 01 March 2012
• DOI: http://doi.org/10.1177/0093854811431419

CIRCUMVENTING THE PENALTY FOR
OFFENDERS FACING MANDATORY MINIMUMS
Revisiting the Dynamics of “Sympathetic”
and “Salvageable” Offenders
MARIO V. CANO
CASSIA SPOHN
Arizona State University
Although sentencing of drug offenders in federal courts is complicated by minimum penalties, which trump the guidelines,
the mandatory penalties can be avoided if offenders receive substantial assistance departures. Nagel and Schulhofer contend
that substantial assistance departures are used to mitigate the sentences of “sympathetic” and “salvageable” offenders. The
authors tested this contention, using data on drug offenders facing mandatory minimum sentences in three U.S. district courts.
Results reveal that substantial assistance departures are used to reduce the sentences of certain types of offenders facing
mandatory minimum penalties: females, U.S. citizens, employed persons, those with some college, those with dependent
children, and those who played a minor or minimal role in the offense. Findings also revealed that racial-ethnic differences
among male offenders were masked by the racial-ethnic similarities among female offenders in the full model and that the
effect of gender was confined to Black and Hispanic offenders.
Keywords: federal sentencing guidelines; mandatory minimum penalties; departures
The past three decades have witnessed reforms that altered sentencing policies and pro-
cedures in state and federal courts. Public and political support for determinate sen-
tencing and retribution in punishment encouraged Congress and state legislatures to enact
reforms designed to ensure proportionality, uniformity, and consistency in sentencing
(Tonry, 1996). Presumptive sentencing guidelines were enacted at the federal level and in
a number of states, and every jurisdiction adopted mandatory minimum sentences for
habitual offenders and for offenders convicted of certain types of offenses, including drug
offenses and offenses involving firearms. These reforms, which were championed by sup-
porters at both ends of the political spectrum, were designed to constrain the discretion of
judges and to eliminate unwarranted disparity in sentencing (Frankel, 1972).
In no jurisdiction were the changes adopted more dramatic than at the federal level. Prior
to 1984, federal judges operated under an indeterminate sentencing scheme in which they
had virtually unfettered discretion to fashion sentences to fit offenders and their crimes.
Passage of the Sentencing Reform Act of 1984, which created the United States Sentencing
AUTHORS’ NOTE: This article is based on work supported by the National Science Foundation under Grant
SES0136236. Points of view are those of the authors and do not necessarily reflect the position of the National
Science Foundation. Correspondence concerning this article should be addressed to Mario V. Cano, School of
Criminology and Criminal Justice, Arizona State University, 411 N. Central Ave., Suite 600, MC: 4420,
Phoenix, AZ 85004; e-mail: mario.cano@asu.edu.
CRIMINAL JUSTICE AND BEHAVIOR, Vol. XX, No. X, Month 2007 308-XXX
ol. 39 No. 3, March 2012 308-332
DOI:
DOI: 10.1177/0093854811431419
© 2007 American Association for Correctional and Forensic Psychology
© 2012 International Association for Correctional and Forensic Psychology
308

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Cano, Spohn / “SYMPATHETIC” AND “SALVAGEABLE” OFFENDERS 309
Commission (USSC) and authorized the commission to promulgate guidelines that judges
would be required to follow, ushered in a new era of federal sentencing. The federal sen-
tencing guidelines, which went into effect in 1987, are based on the seriousness of the
offender’s crime and criminal history and on such things as whether the offender “accepted
responsibility” for his or her crime by pleading guilty. Although judges can depart from the
guidelines, there are very limited grounds for either upward or downward departures. The
statute states that judges may depart from the guidelines only on a finding that “there exists
an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the guidelines” (18
U.S.C. §3553[b]). Moreover, the guidelines expressly state that certain factors “are not
ordinarily relevant in determining whether a sentence should be outside the applicable
guideline range” (USSC, 1993, chap. 5, part H, §5H.1-13). Included among the specific
offender characteristics that are “not ordinarily relevant” are the defendant’s age, education
and vocational skills, mental and emotional conditions, physical conditions (including drug
or alcohol dependence or abuse), employment record, family ties and responsibilities, and
community ties. These provisions, then, effectively preclude judges from considering what
many regard as the “commonsense bases for distinguishing among offenders” (Tonry,
1996, p. 77).
It is important to point out that the federal sentencing process was altered by a series of
Supreme Court decisions that enhanced the roles played by prosecutors and juries and that
limited the ability of judges to impose sentences that exceeded the statutory maximum. The
most important of these decisions was United States v. Booker (2005) (and the companion
case, United States v. Fanfan, 2005), in which the court ruled that the federal guidelines are
advisory rather than mandatory. Although judges must still compute and take into account
the recommended guideline range for each offender, they are not bound to impose a sen-
tence within that range. However, these rulings did not affect the sentencing process for the
offenders included in this study; all of them were convicted in fiscal years 1998, 1999, and
2000, when the guidelines were mandatory.
The federal sentencing process is complicated by the fact that Congress also enacted a
series of laws requiring minimum sentences for offenders convicted of certain types of
offenses, including drug offenses. Most of the mandatory minimum sentences for drug
offenses are based on the quantity of drugs for which the offender can be held responsible.
For example, the Anti-Drug Abuse Act of 1986 established a minimum sentence of 5 years
for offenders convicted of possessing 500 g of powder cocaine (but only 5 g of crack
cocaine) or 100 g of heroin. Offenders convicted of possessing 5,000 g of powder cocaine
(50 g of crack cocaine) or 1,000 g of heroin are subject to a minimum sentence of 10 years.
In April of 2007, the USSC voted to promulgate an amendment to the guidelines that
reduced the penalties for crack cocaine offenses. Whereas the original guidelines provided
that first-time offenders convicted of offenses involving 5 g of crack cocaine were to
receive a guideline sentence of from 63 to 78 months, the amended guidelines provide for
a sentence of 51 to 63 months. There was a similar reduction—from 121 to 151 months
(original guidelines) to 97 to 121 months (amended guidelines)—for first-time offenders
convicted of offenses involving 10 g of crack cocaine. Although these changes did not
affect the original sentences that were imposed on the offenders in this study—all of whom
were convicted in 1998, 1999, or 2000—in December of 2007, the commission voted

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310 CRIMINAL JUSTICE AND BEHAVIOR
unanimously to apply the amendment retroactively. This means that an offender sentenced
under the old guidelines could apply for a sentence reduction; a federal judge would decide
whether the offender was eligible for a reduced sentence and how much the sentence reduc-
tion should be (USSC, 2008).
The complication in federal sentencing arises from the fact that whereas the sentencing
guidelines “look to an array of indicators to determine offense seriousness,” the mandatory
minimums for drug offenses are based entirely on “the weight of the drug or drug mixture”
(USSC, 1991, pp. 27-28). In other words, the guidelines, but not the mandatory minimums,
would allow the judge to take into account whether the offender played only a minor role
in the offense or whether the offender accepted responsibility by pleading guilty. This,
according to the USSC (1991), makes it difficult, if not impossible, for the guidelines to
achieve their stated goal of proportionality in sentencing:
By requiring the same sentence for defendants who are markedly dissimilar in their level of
participation in the offense and in objective indications of post-offense reform, these manda-
tory minimum provisions therefore short-circuit the guidelines’ design of implementing sen-
tences that seek to be proportional to the defendant’s level of culpability and need for punish-
ment. (p. 28)
This problem is exacerbated by the fact that mandatory minimum penalties “trump”
sentences under the guidelines. To illustrate, a judge imposing sentence on an offender with
a presumptive sentence under the guidelines of 4 years but a mandatory minimum penalty
of 5 years for possession of 500 g or more of powder cocaine would be required to impose
the 5-year sentence.
In April of 2007, the USSC voted to promulgate an amendment to the guidelines that
reduced the penalties for crack cocaine offenses. Whereas the original guidelines provided
that first-time offenders convicted of offenses involving 5 g of crack cocaine were to
receive a guideline sentence of from 63 to 78 months, the amended guidelines provide for
a sentence of 51 to 63 months. There was a similar reduction—from 121 to 151 months
(original guidelines) to 97 to...