Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack-Cocaine and Powder-Cocaine Cases

This article by Hartley, et al. takes a more in depth look at an issue that most of us have probably heard about in one way or another at this point in our lives: the disparity for sentencing guidelines between crack and powdered cocaine. There has been much contention that the reason for these difference is race related, because of who uses the drugs. Hartley takes a different approach, however. Rather than looking at the sentencing guidelines Hartley recognizes that there are loopholes to the mandatory minimum sentences, loopholes that judges and prosecutors are very familiar with. One loophole occurs if a defendant provides information that leads to the "prosecution and conviction of another offender." Hartley examines these cases and their frequency between the two drugs, and across race and gender lines.

The part of this article I actually found most interesting came in the beginning when they were discussing the amount of discretion that really has been placed in the hands of our prosecutors. They discuss the 1984 federal act under which judges were mandated minimum sentences for certain crimes. This act essentially took discretion away from the judges, and forced them to operate within a narrow set of guidelines. However, Hartley points out how there has been no such standarization for the prosecutors. The prosecutors are the ones who can decide what charge is applied to a case, the severity of the charge, and when it is appropriate for charges to be dismissed. To this list of discretions Hartley, et al. would also add the mitigation of sentences, such as in cases where the defendant provides useful information for another case.

What has essentially happened is the power that judges once had has been completely transferred over to the prosecutors, a party that one could argue is far less partial than a judge. The prosecutors have a stake in the number of convictions they attain, whereas the judge has more of a stake in justice. Knowing that the judges are held to minimum sentences the prosecutors can also adjust their charges in order to get the sentence that they would want for an individual. I guess it just seems a little scarier to see this power in a prosecutor's hands, rather than a judges.