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Substantial Assistance and the Cooperator’s Dilemma

The “substantial assistance” provisions of the U.S. Sentencing Guidelines dominate the practice of modern federal criminal law. This primary mechanism by which criminal defendants who provide valuable information to federal prosecutors are compensated for their cooperation—namely, in the form of a sentence either below the calculated Guidelines sentencing range or, more significantly, below any mandatory minimum—has created a system where defendants are incentivized to incriminate themselves and as many others as possible, all without any guarantee that their cooperation will actually result in a lesser sentence. This Note explores the operation of this provision; the consequent “cooperator’s dilemma” it creates for defendants considering cooperation; and the unreliable, unfair, and unethical results it generates. It offers a novel incremental solution: an intermediate departure provision called “good faith cooperation,” whereby defendants who have attempted to cooperate but do not obtain substantial assistance motions can move to receive sentences below guidelines ranges and mandatory minimums on the basis of their attempted assistance. This provision provides a politically feasible option for legislators and commissioners that addresses multiple concerns regarding the current system without entirely upending the practice of federal criminal law as it exists.