Prosecutorial Discretion and Real-Offense Sentencing: An Analysis of Relevant Conduct Under the Federal Sentencing Guidelines

• NCJ Number: 206855
• Journal: Criminal Justice Policy Review Volume: 15 Issue: 3 Dated: September 2004 Pages: 324-343
• Author(s): Keith A. Wilmot; Cassia Spohn
• Date Published: September 2004
• Length: 20 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This study examined whether prosecutorial charging discretion affects the goal of Federal Sentencing Guidelines, which is to ensure that similar defendants convicted of the same type of offense receive similar sentences.

Abstract

The Federal Sentencing Guidelines are based on real-offenses sentencing, which links relevant conduct or actual offense behavior to the sentencing process. The current study analyzed the indictment stage of case processing, in which charging decisions by the Federal prosecutor in conjunction with relevant conduct of the defendant are first conceived. The data analyzed were a subset of the 1995 Intensive Study Sample (ISS) developed by the U.S. Sentencing Commission. This data set was selected because it is the only one that includes information on the actual criminal conduct that underlies the charges and sentencing guideline adjustments applied to the defendant at sentencing, the initial number of indictments, and the number of counts contained within the indictment (for drug cases only). The dependent variables analyzed were sentence length, whether the defendant received any downward departure or a substantial assistance departure, the magnitude of the sentence discount for a departure, and the ratio between the sentence discount and the presumptive sentence A (adjusted guideline minimum). The legally relevant variables in the study included the number of original counts contained within the indictment, the offender's criminal history, the adjusted guideline minimum, and whether the offender received a downward departure in the sentence. The study's major finding is that the number of counts within the indictment has a statistically significant effect on the sentence length, the magnitude of the discount for downward departures, and the ratio of the difference between the presumptive sentence and the sentence discount. The number of counts had no effect on the offender's likelihood of receiving either a downward departure or a substantial assistance departure; therefore, due to the discretion of the prosecutor in determining the charges at the indictment, offenders convicted of the same crime do not necessarily receive the same sentence. 6 tables, 15 notes, and 23 references