Substantial Assistance - Working Off Charges as a Confidential Informant

Russell J. Ferraro III

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Criminal Defense Attorney

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Posted over 1 year ago. 1 helpful vote

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Substantial Assistance is a Legal Reason for a Downward Departure

Florida’s Criminal Punishment Code mandates certain minimum sentences in felony cases based on a mathematical equation that considers the seriousness of the crime (as determined by the legislature), criminal history, and aggravating or mitigating circumstances. There are few legal reasons to depart from the Criminal Punishment Code Score.

One of the most common reasons for a downward departure is due to the Defendant’s “Substantial Assistance." Substantial Assistance occurs when the Defendant cooperates with the State to resolve the current offense or any other offense. The Substantial Assistance downward departure is one of the most widely used tools at law enforcement’s disposal – especially in the areas of drug trafficking, sale and possession. In certain circumstances, it is also a valuable tool for the Defendant to consider after careful consideration and input from an experienced defense attorney.

If I Agree to Provide Substantial Assistance, What is Expected of Me?

Often, someone who is investigated or arrested for drug related crimes will be approached by law enforcement and recruited to help secure new arrests. Whether this is a good idea or bad idea is ultimately up to the person approached. But before agreeing to provide substantial assistance, Florida’s Treasure Coast and Palm Beach residents should have an idea of what they are getting themselves into.

Most of the time, law enforcement already knows who the bad guys are. They have some idea – at least generally – as to who or which groups are moving drugs. This type of information is rarely useful to law enforcement, by itself. Law enforcement will be more interested in obtaining information or evidence that will give them probable cause to make an arrest or bring down a drug ring. Therefore, they are generally looking for more active participation than just a relay of information. Generally, law enforcement will ask a defendant to make a controlled purchase of the illegal contraband, or to make an introduction between a drug dealer and an undercover detective. And often, they will require this type of assistance not just once, but on a regular basis for some period of time.

Will Providing Substantial Assistance Put Me At Risk?

Providing substantial assistance of this nature can and does put people at risk. Once someone agrees to become a confidential informant, law enforcement will usually do everything in their power to keep the informant confidential. They understand that if their sources get exposed, they will have a hard time getting new sources in the future. That said, many drug dealers work with only a small group of confidants. If they get arrested, the list of potential informants may be fairly small. Additionally, defense attorneys sometimes will get informants exposed, especially if the informant is the only person with first hand knowledge of an alleged illegal transaction. There is a risk of retaliation to informants and/or their families. The amount of risk upon being exposed really depends on a case by case basis – as some drug dealers are more dangerous than others.

What Benefits Come From Providing Substantial Assistance?

Law Enforcement and the State Attorney’s Office will generally offer little in return for substantial assistance on the front end. In the rare occasion, one may be willing to hold off on filing charges until substantial assistance is completed. But usually, the charges have already been filed and the Defendant is looking at a lengthy prison sentence. Often, the State Attorney will not agree to allow substantial assistance to go forward unless the Defendant has already entered an open plea of guilty or no contest to the court. No promises are made. However, if substantial assistance is provided in enough cases to satisfy law enforcement, the officer and/or the state attorney will usually make a positive sentencing recommendation to the judge in the informant’s case. On the other hand, if substantial assistance is promised, but not provided, often the State Attorney and/or law enforcement will give a scathing recommendation that will sometimes put you in a worse place than where you started.

Should I Provide Substantial Assistance?

In many cases, the benefits of substantial assistance are greatly outweighed by the risks. In other cases, the risks are much less than the potential gains. It is a case by case analysis that must be decided on by the Defendant and no one else. I have seen people provide substantial assistance prior to charges being filed and watch trafficking cases with 15 year minimums wiped away. I have seen others have a sentencing recommendation reduced from 10 years prison to time served. On the other hand, I have seen others promise assistance and not follow through, only to get hammered at sentencing. And in a few instances, I have seen informants become social outcasts in their community upon being outed.

It is very important to talk to a skilled attorney that understands substantial assistance in the jurisdiction in which you were arrested, as well as your individual goals and the issues surrounding your particular case, before making a decision to provide or not to provide substantial assistance.

If you or a loved one have been arrested on the Treasure Coast or Palm Beaches and are unsure whether or not to provide substantial assistance, contact us at the Ferraro Law Group and let us put our experience to work for you.

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