Mitigating the Effect of a Criminal Record at Sentencing

Abstract

The assumption in courts and sentencing research is that recidivists—or, defendants with a criminal record who are facing new charges—are considered more blameworthy and perceived as more dangerous by courtroom decision makers, including prosecutors. Nagel and Schulhofer suggested that defendants with a prior record may be viewed as sympathetic by federal prosecutors because of “human factors,” leading to substantial assistance departures in these cases. We conceptualize human factors as local life circumstances, or temporally bound situations that make attributional statements about the defendant. We operationalize local life circumstances in terms of employment status, financial responsibility to dependents, and drug use, and determine whether these circumstances affect the likelihood of a receiving a substantial assistance departure among defendants with an established record of criminality. In addition to case characteristics, employment and drug use increased the likelihood of a prosecutor-sponsored sentence departure among recidivists in federal court.