The Joint Effects of Offender Race/Ethnicity and Gender on Substantial Assistance Departures in Federal Courts

• Author: Pauline K. Brennan,Cassia Spohn
• DOI: 10.1177/2153368710396228
• Published date: 01 January 2011
• Date: 01 January 2011

The Joint Effects of

Offender Race/Ethnicity

and Gender on Substantial

Assistance Departures in

Federal Courts

Cassia Spohn

1

and Pauline K. Brennan

2

Abstract

Research on the federal sentencing process has demonstrated that, the sentencing

guidelines notwithstanding, outcomes are affected by legally irrelevant offender

characteristics. Using data on offenders convicted of drug offenses in three U.S.

district courts, we build on and extend this research. We examine the main and

interactive effects of offender race/ethnicity and gender on the likelihood of receiving

a downward departure for providing substantial assistance and on the magnitude of

the sentence discount given to offenders who receive these departures. Our findings

indicate the Black and Hispanic male offenders are treated more harshly than all other

offenders. Our findings also indicate that there are no differences between female

offenders of any race/ethnicity and White male offenders or between the three groups

of female offenders. We suggest that prosecutors and judges use the discretion

inherent in the substantial assistance departure to circumvent the guidelines and to

fashion more appropriate sentences for sympathetic and salvageable offenders.

Keywords

drug laws, presumptive sentencing, race and sentencing, sentencing guidelines,

stereotypes

Race and Justice

1(1) 49-78

ªThe Author(s) 2011

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DOI: 10.1177/2153368710396228

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1

Arizona State University, Phoenix, AZ, USA

2

University of Nebraska, Omaha, NE, USA

Corresponding Author:

Cassia Spohn, School of Criminology and Criminal Justice, Arizona State University, 411 N Central Ave,

Suite 600, Phoenix, AZ 85004, USA

Email: cassia.spohn@asu.edu

Federal judges once operated under an indeterminate sentencing system that allowed

them to exercise virtually unfettered discretion when sentencing offenders.

This changed in 1984 when Congress passed the Sentencing Reform Act (SRA).

One of the goals of the act was to achieve ‘‘reasonable uniformity in sentencing by

narrowing the wide disparity in sentences imposed [by judges] for similar criminal

offenses committed by similar offenders’’ (USSC, 1993, Chap. 1, pt. A, p. 3).

To achieve that objective, the SRA created the U. S. Sentencing Commission (USSC),

which was authorized to develop and implement presumptive sentencing guidelines

designed to achieve ‘‘honesty,’’ ‘‘uniformity,’’ and ‘‘proportionality’’ in sentencing

(USSC, 1993, p. 2). These federal sentencing guidelines went into effect in 1987.

Federal sentencing guidelines were designed to structure the sentencing process and

thereby constrain judicial discretion in order to eliminate unwarranted disparity

regarding legally irrelevant factors such as gender, race, and ethnicity. Judicial

discretion is curtailed because presumptive sentences are specified within a grid

(or matrix) based on two key factors—the offender’s final offense level and his or her

total number of criminal history points. The point on the grid where these two factors

intersect specifies the presumptive sentence that a judge is advised to impose.

1

However, the guidelines do allow for departures in limited cases. 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 consid-

eration by the Sentencing Commission in formulating the guidelines ...’’ (18 USC

§3553(b)).

2

For example, defendants who provide ‘‘substantial assistance’’—that is,

information that leads to prosecution and conviction of another offender—are eligible

for a downward departure (USSG §5K.1.1, USSC Guidelines Manual, 2001).

To elaborate, Section 5K1.1 states that ‘‘upon motion of the government stating that

the defendant has provided substantial assistance in the investigation or prosecution of

another person who has committed an offense, the court may depart from the

guidelines.’’ If the court grants the motion, as typically happens, the sentencing judge

has discretion to determine the amount of the sentence reduction, and the imposed

sentence may end up being substantially less than the presumptive sentence under the

sentencing guidelines (see 18 USC §3553 (e)).

3

Sentencing scholars contend that substantial assistance departure decisions are a

‘‘wellspring of sentencing disparity’’ (Stith & Cabranes, 1998, p. 140) and have the

potential to produce the type of unwarranted disparity that the guidelines were

intended to eliminate (Kramer & Ulmer, 1996; Mustard, 2001; Nagel & Schulhofer,

1992). The purpose of this article is to examine the use of substantial assistance

departures for federal drug offenders. Specifically, we are interested in whether

offender race/ethnicity and gender operate jointly to influence both the likelihood of a

substantial assistance departure and the magnitude of the sentence discount given to

offenders who receive substantial assistance departures.

Our study focuses on decisions made for drug offenders convicted in three federal

courts located in Iowa, Minnesota, and Nebraska. We focus on drug offenders because

court processing scholars have argued that sentencing outcomes are likely to be

particularly severe for minority drug offenders (Crow & Johnson, 2008; Demuth &

50 Race and Justice 1(1)