Inconsistent Methods Used in Applying Sentence Reductions

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By Jessica DaSilva

April 7 — A landmark study issued by the U.S. Sentencing Commission reveals procedural inconsistency in how the 94 federal jurisdictions handle sentence reductions for defendants who substantially cooperate with prosecutors.

While that discrepancy is not inherently indicative of wrongdoing, it does provide guidance to criminal law practitioners as to which method may be more effective in their jurisdictions, a sentencing professor told Bloomberg BNA.

‘Hidden Component.'

Christine M. Leonard, director of legislative and public affairs for the U.S.S.C., said the study's main goal was to provide greater detail and analysis on the tools the government uses to obtain substantial assistance reductions. The commission wanted to see whether practices were consistent across the country and if not, in what locations they differed, she explained.

Two motions are available for prosecutors to request a sentence reduction—one before sentencing and one after, according to the report on the study. The study tracked the use of post-sentencing motions for the first time and found that some federal jurisdictions use post-sentencing motions instead of pre-sentencing motions, the report said.

Traditionally, prosecutors would enter a motion before sentencing pursuant to Section 5K1.1 of the federal guidelines, explained Douglas E. Berman, a law professor at the Ohio State University Moritz College of Law and author of the Sentencing Law and Policy Blog. The post-sentencing motion under Fed. R. Crim. Pro. 35(b) was typically seen as a back-door method to a sentence reduction, he added.

Studying those post-sentencing motions was important because they were previously perceived as a “hidden component” of the federal criminal justice system because the U.S.S.C. did not track their use, Berman said.

“It seems like in a few districts, this isn’t an afterthought—this is operationalized,” Berman said.

However, Congress never expressed a clear preference in which method prosecutors should use, which makes it difficult to measure whether that data is good or bad, he said.

“I'm not sure that's a sign of injustice, but it's a sign of the system,” Berman said. “It's not necessarily something to praise or criticize.”

Guidance for Practitioners

Still, the data provides more insight into how this large system functions, he added. While Berman said he might have a richer understanding of how many people cooperate and receive benefits for that cooperation at sentencing, it still only provides a limited view.

“That's only one piece of federal sentencing giving us a crisper understanding of the broader mosaic,” he said. “It's hard to assess that one particular puzzle piece to determine the look of the overall puzzle.”

Even if the data is too limited to offer big-picture insight, Berman said it offers practitioners guidance on which method might be more effective in their respective jurisdictions.

Leonard agreed.

“The study provides a framework of reference for the national application of procedures to better inform local practitioners,” she said.

Unexpected Finding

Yet in addition to the practical guidance, Leonard added that an unexpected finding showed that most judges doling out reductions still found themselves sentencing within the guidelines. Most of those defendants receiving sentence reductions were those serving mandatory minimum sentences for drug crimes, she said.

Reviewing the data showed that in some circumstances, judges decided the lengths of those mandatory minimums were not appropriate, Leonard said.

“Our commission focuses its work on the federal sentencing guidelines,” she said. “Ultimately, it's up to Congress as to whether these mandatory minimums still make sense.”

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

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