Since the beginning of the twentieth century, the federal government has incrementally recognized the need to standardize criminal statutes and sentencing provisions, fueled in great measure by a dissatisfaction with unrestrained judicial discretion and indeterminate sentences. It was this sentiment that underlay the passage of the Sentencing Reform Act (SRA) of 1984 and its three 1 sentencing goals:

* honesty: to provide for sentences that represent close approximations of the actual time that defendants would serve in prison;

* uniformity: to promote consistency between the sentences imposed for "similar criminal offenses committed by similar offenders"; and

* proportionality: to foster sentence lengths that correlate with the severity of the offense committed.

Legislative history indicates that the primary congressional focus driving the SRA was the desire to control unwarranted sentencing disparity inherent in an indeterminate sentencing system and the individualized sentencing model -- a structure believed to result often in dissimilar sentences for similar offenders and similar sentences for dissimilar offenders. This concern is reflected in the text of the SRA, which mandates that the federal sentencing commission established under the law produce "certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct . . . ."

The Commission responded to congressional concern by nationally standardizing the factors and weights that determine individual punishments for defendants convicted of similar offenses. The resulting federal sentencing guideline system computes numeric offense seriousness levels based upon defendant behavior, the scope of the offense, offense-specific aggravating and mitigating factors, and general culpability adjustment criteria. Guideline sentence ranges are then determined from a matrix using the numeric offense levels and criminal history seriousness measures that capture the length, seriousness, and recency of the defendant's criminal past.

Following on the heels of the SRA was the 1986 Anti-Drug Abuse Act. In this legislation, Congress directed the Commission to create sentence reduction incentives that would decrease sentences below the guideline range for offenders who assist in the investigation or prosecution of another person committing a criminal offense. The Sentencing Commission' s response to this congressional mandate took the form of guideline policy statement 5K1.1--Substantial Assistance to Authorities:

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.

There is scant instruction clarifying the terms and policies contained in this genesis substantial assistance statement. Even further, the Guidelines Manual recognizes that this silence is by design:

A defendant's assistance to authorities in the investigation of criminal activities has been recognized in practice and by statute as a mitigating sentencing factor. The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based on variable relevant factors, including those listed above. The sentencing judge must, however, state the reasons for reducing a sentence under this section.

Issues raised in the substantial assistance policy statement, but left unanswered elsewhere in the Guidelines Manual, the statute, and prosecutorial directives such as the U.S. Department of Justice's (DOJ's) U.S. Attorneys Manual, include four that are cited below.

First, the factors to be used by the prosecutor prior to sentencing to determine whether the cooperation of a given defendant is "substantial" -- and therefore warrants a substantial assistance departure motion -- are unaddressed. Defining some type of cooperation as "substantial" implies that there is another type of cooperation that is "non-substantial." Consequently, under this dichotomy, only a subset of defendant cooperation is expected to qualify for a substantial assistance departure. What objective and equitable parameters distinguish between "substantial" assistance and "non-substantial" assistance?

Second, the authority to move for a §5K1.1 departure is limited to the prosecution. This exclusivity has resulted in spirited debate in the criminal justice community. Government prosecutors defend the appropriateness of their substantial assistance monopoly by citing the government's unique capability to judge accurately the benefit obtained from the type and extent of assistance provided. The critical response is that predicating a substantial assistance departure on a government motion is a potential source of disparity because the unilateral government decision whether to make the substantial assistance motion is not subject to challenge by the defense and is not reviewable by the court (unless constitutional grounds are cited).

Third, substantial assistance is linked to cooperation concerning the investigation or prosecution of another person. This principle contends that the prosecution cannot move for, neither can the court grant, a §5K1.1 departure based solely upon information that the defendant provides about him/herself.

Finally, apparently not all substantial assistance is equal. The policy statement places no conditions on the magnitude of the sentence reduction to be given. Consequently, extensive cooperation theoretically would deserve a larger sentence reduction than less extensive (but still substantial) cooperation. What is the link between assessing the value of a defendant's substantial assistance and deciding on the magnitude of the sentence reduction? While §5K1.1 addresses factors that should be considered in determining the "appropriate reduction," it does not specify a functional relationship. The statute itself is even less illuminating, only mentioning that it is appropriate to provide a cooperating defendant with "a lower sentence than would otherwise be imposed."

....

Per congressional mandate for an ongoing assessment of whether its guidelines are meeting the purposes of the SRA, in December 1991 the Commission initially evaluated the disparity-reducing operations and impacts of the newly established sentencing guidelines. With respect to §5K1.1 sentencing practices, the Commission's report concluded that:

The evaluation suggested some unevenness and unwarranted use among U.S. attorney offices and individual prosecutors of prosecutorial motions to depart below the guidelines range based on a defendant's substantial assistance in the investigation or prosecution of other persons. Quantitative and qualitative evidence from the evaluation points to a need for the Commission and the Department of Justice to monitor this issue to ensure that substantial assistance departures are not inappropriately used to undermine the guidelines, and to ensure that warranted substantial assistance departures do not result in unwarranted disparity.

By 1994, data analysis and comments -- generated as part of the Commission's ongoing legislative prescription to "periodically . . . review and revise" the guidelines -- indicated that the 13 previously observed trends and variations in §5K1.1 departures continued. For example, substantial assistance rates: (1) increased steadily since implementation of the federal sentencing guidelines; (2) varied greatly by judicial circuit and district; (3) varied within categories for several defendant demographic characteristics, most notably race and citizenship status; and (4) varied by offense of conviction and length of imposed sentence.

These data suggested potential inconsistencies in how substantial assistance departures were being applied nationally. Proceeding from the recommendation in the earlier evaluation report, the Commission formed a Substantial Assistance Staff Working Group to study in greater detail substantial assistance sentencing practices under the guidelines.

...

While this paper's exploration into the use of substantial assistance may raise more questions than it answers, the questions that it raises could set a significant policy agenda for the U.S. Sentencing Commission and the Department of Justice. In 1984, Congress determined that the American people deserved a fair, equitable, and honest sentencing system. In setting this course, Congress created the U.S. Sentencing Commission and mandated that it write sentencing guidelines to structure the decision-making of the federal judiciary. Two years after passage of the Sentencing Reform Act of 1984, Congress passed the Anti-Drug Abuse Act of 1986 and directed the Commission to:

assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

This directive to the Commission to reward offenders for cooperating in the investigation or prosecution of other offenders must be viewed within the overall goal of establishing fair and honest sentencing. Thus, one of the goals of this project is to examine whether substantial assistance motions are consistent with the overall tenor of the Sentencing Reform Act.

Research questions focused on the policies and procedures developed in the districts to see whether they were consistent with each other and whether they resulted in similar defendants receiving similar sentence reductions for providing similar assistance. Consistent with the development of explicit and consistent sentencing guidelines in the judiciary, this report presumes that the U.S. Sentencing Commission and the Department of Justice should require similar procedures and policies in order for similar assistance to receive similar sentence reductions.

Thus, a Commission working group was established to explore the policies and procedures across the judicial districts, and to study the factors associated with §5K1.1 sentence reductions and the magnitudes of the departures. To conduct this exploratory analysis, the working group developed a diversity of research methodologies including: (1) a review of substantial assistance social science and legal literature; (2) a review of §5K1.1 case law; (3) a mailed policy survey of U.S. attorneys; (4) site visits to eight federal judicial districts (which included interviews with judges, prosecutors, private defense attorneys, public defenders, and probation officers); (5) telephone interviews with designated U.S. attorney office staff concerning defendants who received a substantial assistance departure; (6) a case coding project for defendants involved in a sample of conspiracies in which at least one member received a §5K1.1 departure; and (7) descriptive and multivariate analyses of the Commission's extensive sentencing database.

The evidence compiled from these efforts indicated that a crucial link underlying the concept of substantial assistance could not be established. The data reported were not able to find direct correlations between type of cooperation provided, type of benefit or result received by the government, the making of a §5K1.1 motion, and the extent of the substantial assistance departure received. While limited data hamper significance testing, the consistency of the findings across methodologies reveals four facets of an equity problem requiring subsequent research.

First, this analysis uncovered that the definition of "substantial assistance" was not being consistently applied across the federal districts. Not only were some districts considering cooperation that was not being considered by other districts, but the components of a given behavior that classified it as "substantial" were unclear. These findings are in contradiction to the equity premises that assume "certainty and fairness."

Second, while the U.S. attorney offices are required to record the reason for making a substantial assistance motion, there is no provision that this information be made available for review. It is exactly such a lack of review, inherent in preguideline judicial discretion, that led to charges of unwarranted sentencing disparity and passage of the SRA. Under the SRA, the court is now compelled to report a reason for the sentence imposed and a reason for a departure -- operationalized in the court's "Statement of Reasons." A comparable §5K1.1 "statement of reasons" appears appropriate for a guideline process affecting nearly one in every five federal defendants. DOJ information on district charging practices, plea bargaining practices, degree and type of cooperation, and usefulness of information to the prosecution is crucial in an assessment of §5K1.1, whether that assessment is performed by the Commission or by any other government agency.

Third, the evidence consistently indicated that factors that were associated with either the making of a §5K1.1 motion and/or the magnitude of the departure were not consistent with principles of equity. Expected factors (e.g., type of cooperation, benefit of cooperation, defendant culpability or function, relevant conduct, offense type) generally were found to be inadequate in explaining §5K1.1 departures. Even more worrisome, legally irrelevant factors (e.g., gender, race, ethnicity, citizenship) were found to be statistically significant in explaining §5K1.1 departures. This discovery requires the Commission to proceed with further assessment to assure that the §5K1.1 policies, processes, and sentences conform to the expectations of fairness and justice.

Finally, the analysis raises the question of whether the Sentencing Commission needs to provide guidance about the magnitude of a decrease in a §5K1.1 departure. Data indicate that currently judges relate the magnitude of departure to the length of the predeparture sentence: higher predeparture guideline ranges bring more absolute months of departure. However, no evidence supports the conclusion that defendants facing higher sentences, in fact, provide absolutely more cooperation, or absolutely more beneficial cooperation, to warrant a larger relative departure. The issue is whether the magnitude of a substantial assistance departure should be an absolute amount (all defendants who cooperate at a given substantial assistance level receive a set and absolute number of months reduction in sentence) or a relative amount (all defendants who cooperate at a given substantial assistance level receive a proportional months reduction in sentence). The philosophical debate that 43 addresses the assumptions and ramifications of the absolute versus proportional approach is long overdue.