U.S. attorneys and substantial assistance departures: Testing for interprosecutor disparity

Cassia Spohn, Robert Fornango

Research output: Contribution to journalArticlepeer-review

78 Scopus citations


An important and highly discretionary component of the federal sentencing guidelines is the downward departure for providing substantial assistance. Critics charge that the substantial assistance departure, which requires a motion by the prosecutor, may produce the type of unwarranted sentencing disparity that the guidelines were intended to eliminate. Research reveals, for example, that jurisdictional variations are evident in the use of substance assistance departures (Johnson, Ulmer, and Kramer, 2008; Nagel and Schulhofer, 1992), and that the likelihood of receiving the departure is affected by legally irrelevant offender characteristics, which include race, ethnicity, and gender (Mustard, 2001). The purpose of this article is to extend this research by exploring the degree to which decisions regarding substantial assistance departures vary across prosecutors. Using data on offenders sentenced in three U.S. district courts and a multilevel modeling strategy, we investigate whether interprosecutor disparity exists in the likelihood of substantial assistance departures and in the criteria that prosecutors use in deciding whether to file a motion for a substantial assistance departure. Findings indicate that significant interprosecutor variation remains after taking into account offender characteristics, case characteristics, and the district in which the case is adjudicated.

Original languageEnglish (US)
Pages (from-to)813-846
Number of pages34
Issue number3
StatePublished - Aug 2009


  • Departures
  • Federal sentencing
  • Prosecutors

ASJC Scopus subject areas

  • Pathology and Forensic Medicine
  • Law


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