Simplication Draft Paper

Departures and Offender Characteristics

I. Introduction

Fundamental to an analysis of any sentencing guidelines system is an understanding of the system's treatment of offender characteristics and its allowance for sentences outside the recommended range -- i.e., departures. In theory, these topics are distinct: offender characteristics may be taken into account directly by the guidelines themselves -- not just through departures -- and the permissible scope of departures in a guideline system may go beyond those based just on offender characteristics.

Under the current federal sentencing system, however, the treatment of offender characteristics and judicial authority to depart are closely interwoven. There are two primary reasons for this. First, offender characteristics are only minimally accounted for under the guideline provisions that generate guideline ranges and instead are largely dealt with through policy statements that seek to regulate departures. Second, offense characteristics are accounted for in fairly substantial detail under the guideline provisions that generate guideline ranges, leaving relatively less of this conduct to be accounted for through departures. Thus, while the topics of departures and offender characteristics are theoretically distinct, the federal sentencing guidelines' policies toward these topics are, in fact, significantly interlinked.

Mindful of this association, this paper analyzes departures and offender characteristics under the guidelines. Part II provides an overview of how the guidelines operate in these areas and examines how the guidelines' approach relates to pertinent provisions in the Commission's enabling statute. Part III presents general empirical information on current departure practice. Part IV describes appellate review standards with respect to departures. Part V summarizes illustrative criticism of the guidelines' policies toward departures and offender characteristics. Part VI compares how selected state systems operate with respect to these two topics. Finally, Part VII suggests options the Commission may wish to consider to simplify and otherwise improve the operation of the guidelines with respect to departures and offender characteristics. (Because sentence reductions for a defendant's substantial assistance raise unique and complex issues, this paper considers this category of departures only peripherally.)

II. The Operation And Statutory Framework of The Guidelines' Departure And Offender Characteristics Policies

A. Departures Generally

The introduction in Chapter One of the Guidelines ManualChapter One, Part A, Subpart (4)(b). describes the Commission's overall philosophy and intent regarding the use of departures under the federal sentencing guidelines. This commentary begins by citing the relevant sentencing statute,18 U.S.C. 3553(b). which provides that a court may depart from a guideline-specified sentence only when it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence" that is outside the guideline range. The commentary explains that, consistent with this statute, the Commission intends for each guideline to apply to a "heartland" of typical cases reflecting the conduct that the guideline generally describes. A court may consider whether to depart, therefore, when a guideline "linguistically applies" but the facts of the particular case before the court do not represent the norm.

B. Departures and Offender Characteristics

Following this general description of the guidelines' philosophy toward departures, the Chapter One commentary lists a number of offender characteristics (i.e., race, sex, national origin, creed, religion, socioeconomic status, lack of guidance as a youth, drug or alcohol dependence, and economic duress) that the guidelines preclude as a basis for departure. "With those specific exceptions, however," the commentary continues, "the Commission did not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case."For further discussion of the Commission's intent with regard to departures, see USSG 5K2.0. The key words in this sentence are "in an unusual case" because the Commission has taken additional steps, not referred to in the introductory commentary, to limit departures with respect to a variety of other offender characteristics.

Chapter Five, Part H of the guidelines (Specific Offender Characteristics) contains 12 policy statements dealing with offender characteristics seven of which categorize one or more offender characteristics as being "not ordinarily relevant" to a departure decision. These seven policy statements -- in conjunction with the statutory standard allowing departures only for factors "not adequately taken into consideration by the Sentencing Commission" -- are understood by the courts to significantly constrain departures based on offender characteristics.See, e.g., United States v. Thomas, 930 F.2d 526, 530 (7th Cir. 1991)(concluding that Part H policy statements should "be read as establishing the limited parameters within which certain offender characteristics... are relevant" to "reflect Congress's desire to base criminal punishment on the offense committed rather than on the defendant's personal characteristics"; United States v. Garza-Juarez, 992 F.2d 896, 913 (9th Cir. 1993)(use of "not ordinarily relevant" in 5H1.3 is indication that a defendant's mental or emotional condition is relevant in only limited circumstances); United States v. Johnson, 964 F.2d 124, 127-29 (2d Cir. 1992)("not ordinarily relevant" language does not prohibit departures based on family ties but limits departures to extraordinary circumstances); United States v. Williams, 891 F.2d 962, 964, 967 (1st Cir. 1991)(emphasizing that departure is limited only to the meaningfully atypical case); United States v. Studley, 907 F.2d 254, 257 (1st Cir. 1990)("not ordinarily relevant" language in 5H1.3 requires district court to make express findings that the mental or emotional condition is atypical).

(1) Statutory Directives Relating to Offender Characteristics

The guidelines' limitations on offender characteristics are not entirely the product of Commission policy-making discretion. Many of the offender characteristics that the guidelines either preclude or generally discourage as "not ordinarily relevant" as a basis for departure derive, at least to some degree, from requirements in the Commission's enabling statute. The relevant statutory provisions are subsections (d) and (e) of 28 U.S.C. 994 and these provisions interrelate in a complex fashion.

Subsection (d) provides a baseline requirement for offender characteristics under the guidelines by directing that "the Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders." This provision also instructs the Commission, however, to evaluate whether certain other enumerated characteristics -- several of which might be argued to have potential racial, ethnic and/or socioeconomic impact -- "have any relevance" to the imposition of sentences. The enumerated factors that the Commission must consider for relevance are:



vocational skills;

mental and emotional condition ("to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant");

physical condition, including drug dependence;

family ties and responsibilities;

community ties;

role in the offense;

criminal history; and

degree of dependence upon criminal activity for a livelihood.

Finally, 28 U.S.C. 994(e) limits the use of some of these same factors with respect to sentences of imprisonment by requiring "that the guidelines and policy statements in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant."

(2) The Commission's Execution of the Statutory Directives

The Commission has executed the statutory directives in subsections (d) and (e) by grouping the offender characteristics addressed by the directives into five categories:

(1) offender characteristics directly taken into account by the guidelines (e.g., the role in the offense,See Chapter Three, Part B. Arguably, this characteristic is better classified as an offense characteristic rather than an offender characteristic. criminal historySee Chapter Four.);

(2) offender characteristics that may be relevant for purposes of departure (e.g., inadequately accounted for criminal history, criminal livelihood, diminished mental capacity, and duress);

(3) offender characteristics "ordinarily not relevant" for purposes of departure (e.g., age, education, vocational skills, mental and emotional condition, physical condition, employment record, family ties, and community ties);

(4) offender characteristics that are "not a reason" for departing below the guideline range (e.g., drug or alcohol dependence); and

(5) offender characteristics whose consideration is precluded with respect to any aspect of the sentencing decision (e.g., race, socioeconomic status).

Table I sets forth a comparison of the statutory directives with their treatment under the guidelines. As Table I shows, most of the statutory directives and the actions taken by the Commission to execute these directives bear a reasonably close relationship. For example, the statute directs the Commission to ensure that the guidelines are "neutral" with respect to race and 5H1.10 instructs the courts that race is "not relevant" in determining the sentence. Similarly, education, vocational skills, and several other offender characteristics are categorized by the statute as "generally inappropriate" considerations in determining whether (and for how long) to impose a prison sentence. The guidelines, in turn, classify these factors as "not ordinarily relevant" in evaluating whether a case warrants a departure.

On the other hand, it might be argued that the Commission took a more restrictive stance toward these latter-mentioned offender characteristics than it needed to. The statute can be understood to mean that the listed offender characteristics should generally not increase the likelihood of imprisonment being imposed as a sentence but not that a non-incarcerative sanction -- i.e., probation -- would be similarly disfavored based on these factors. (As noted in

II(E)(3)below, the legislative history suggests that this asymmetrical reading of the statute -- in other words, that these factors should not increase a defendant's likelihood of being sentenced to prison but may increase a defendant's likelihood of being sentenced to probation -- may have been what the drafters had in mind.)

Table I shows that the Commission did take a more restrictive view than required by the statute with respect to four offender characteristics: age, mental and emotional condition, general physical condition, and drug dependence. Although the statute required only that the Commission consider the possible relevance of these characteristics, the Commission treated three of these characteristics the same as those that the statute puts into the "generally inappropriate" for prison category. In other words, the Commission specified that these offender characteristics factors are "not ordinarily relevant" to a departure decision. The Commission went a step further with drug dependence, saying categorically that this characteristic "is not a reason for imposing a sentence below the guidelines."USSG 5H1.4, p.s.

(3) Other Generally Disfavored Offender Characteristics -- A Reaction To Case Law

While most of the guidelines' limitations on the consideration of offender characteristics derive, at least to a degree, from directives in the Commission's enabling statute, several additional limitations on offender characteristics came about in response to court decisions. Offender characteristics that courts upheld as a basis for departure but that the Commission subsequently categorized as "not ordinarily relevant" to a departure are:

physical appearance and physique (5H1.4);

military, civic, charitable or public service; employment-related contributions; record of prior good works (5H1.11).

The Commission blanketly labeled one category of offender characteristics approved by courts for departure as "not relevant grounds for imposing a sentence outside the applicable range." This category is "lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing."See USSG 5H1.12, p.s.

C. Departures and Offense Characteristics

The Commission has also provided significant guidance to the courts with respect to departures based on offense characteristics. This guidance is primarily set forth in Part K of Chapter Five. Part 5K -- bearing the title "Departures" -- is the portion of the Guidelines Manual that ostensibly governs all departures. However, because Chapter Five, Part H (Specific Offender Characteristics) already delineates Commission policies on offender characteristic-based departures, Part 5K is, in fact, residual; it governs what is otherwise not treated, namely departures based on offense characteristics.

Part 5K primarily consists of policy statements setting forth Commission views on the use of various offense characteristics (e.g., victim death, victim injury) as a basis for departure. However, one of Part K's policy statements, 5K2.0, provides a general discussion of the Commission's basic approach to departures. Some of 5K2.0's discussion parallels that found in Chapter One's introduction (discussed above).Like the Chapter One commentary, for example, 5K2.0 both cites the statute that regulates departures and briefly outlines the "heartland" concept underlying the guidelines' design.

Section 5K2.0 differs most from the Chapter One commentary in its detailed discussion of departures based on offense characteristics that Chapter Two of the guidelines already to some degree takes into account. In this regard, 5K2.0 makes clear that the Commission designed the guidelines with an understanding that there would be an inverse relationship between the detail in Chapter Two and the courts' ability to depart. Section 5K2.0 states in relevant part:

Where, for example, the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense. Thus... physical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guideline includes a specific adjustment based on the extent of any injury. However, because the robbery guideline does not deal with injury to more than one victim, departure would be warranted if several persons were injured.

As noted, apart from this general discussion of departure policy, Part 5K primarily consists of individual policy statements, each addressing the merits of a possible departure based on a particular offense characteristic. Table II contains a list of offense characteristics addressed by policy statements in Part 5K, including two policy statements adopted in the most recent amendment cycle. As Table II illustrates, three of Part 5K's policy statements are intended to authorize downward departures. The remaining 13 policy statements authorize upward departures.

D. Departure Treatment Outside of Chapters One and Five

The introductory commentary in Chapter One, the policy statements on offender characteristics in Chapter Five, Part H, and the departure policy statements in Chapter Five, Part K do not exhaust the treatment of departures in the Guidelines Manual. Guidance on departures is also contained in Chapters Two through Four.

Chapter Two (Offense Conduct) contains references to departures in various application notes. For instance, note 4 to 2B1.3 (Property Damage or Destruction) states that an upward departure may be warranted if the monetary value of the property damaged or destroyed does not reflect the extent of harm caused. Overall, there are approximately 40 application notes in Chapter Two that recommend upward departures, ten that recommend downward departures, and four that state more generally that a departure is permissible.

Chapter Three (Adjustments) also contains several departure references. For example, note 3 to 3A1.3 (Restraint of Victim) states that an upward departure may be warranted if the restraint was sufficiently egregious. Finally, recommendations on departures are made in Chapter Four (Criminal History and Criminal Livelihood). Policy Statement 4A1.3 (Adequacy of Criminal History) indicates that a departure from the applicable guideline range may be warranted when the defendant's criminal history category over-represents or under-represents either the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes.

In sum, guidance on departures has been incorporated into all five chapters of the Guidelines Manual that may affect the defendant's sentence.

E. Relevant Legislative History

As discussed earlier, the Commission's enabling statute includes several provisions that bear directly on how Congress expected the Commission to approach offender characteristics and departures. The legislative history to the Sentencing Reform Act (SRA) provides significant additional insight.

Because this legislative history is extensive -- especially a detailed Senate Report that accompanied the legislation in 1983, a year before its enactmentS. Rep. No. 225, 98th Cong., 1st Sess. (1983) [hereafter "Senate Report"]. The sentencing reform portion of this Report is over 150 pages long and includes 430 footnotes. -- analysis of congressional intent by reference to this history is inherently somewhat subjective. People can differ on which portions of this history they find especially significant. It should also be kept in mind that -- except in instances where the underlying statute might be viewed as lacking a plain meaning --

this legislative history is not legally binding on the Commission. Nevertheless, with these caveats noted, several clear themes appear to emerge from the SRA's legislative history that may be worthy of Commission consideration as it assesses how best to move forward.

(1) A Desire To Reduce Disparity by Controlling Departures

The first theme is that the reduction of unwarranted disparity was a very high priority for Congress in enacting the SRA -- arguably the highestReferences to the goal of reducing disparity are scattered throughout the Senate Report. For example, the Report's "General Statement" on the bill highlights disparity as a key target of sentencing reform and calls its existence "shameful." Senate Report at 65. In construing 28 U.S.C. 994(f), which instructs the Commission to promote statutorily enumerated purposes of sentencing, the Senate Report identifies disparity reduction as "particularly" important. Senate Report at 174. -- and that Congress believed that judicial adherence to the guidelines was the means by which disparity would be remedied. Departures, in other words, could help individualize sentences in the unusual case, but Congress clearly intended that they be the exception. Colloquies among Senators spanning nearly a decade of deliberation on the SRA strongly reflect this view,See, e.g., 124 Cong. Rec. 382-383 (1978) (statement of Senator Kennedy, "We want to make sure these guidelines are followed in the great majority of cases;" statement of Senator Hart that "the presumption is that the judge will sentence within the guidelines"); 133 Cong. Rec. S16644-48 (daily ed. Nov. 20, 1987) (joint statement of Senators Biden, Thurmond, Kennedy and Hatch, "If the [departure] standard is relaxed, there is a danger that trial judges will be able to depart from the guidelines too freely, and such unwarranted departures would undermine the core function of the guidelines . . . to reduce disparity"). and a proposed amendment in 1983 that "would have expanded significantly the circumstances under which judges could depart" was rejected in committee.See Senate Report at 79.

Some have cited a footnote in the Senate Report as evidence that Congress might have tolerated more departures than the current guidelines allow. The relevant footnote states:

The United States Parole Commission currently sets prison release dates outside its guidelines in about 20 percent of the cases.... It is anticipated that judges will impose sentences outside the sentencing guidelines at about the same rate or possibly at a somewhat lower rate since the sentencing guidelines should contain recommendations of appropriate sentences for more detailed combinations of offense and offender characteristics than do the parole guidelines.Id. at 52 n.71.

Because the current guideline departure rate is significantly below this 20 percent figure if substantial assistance departures are not counted,If substantial assistance departures are not counted, the current departure rate is only about nine percent. See Part III, below. it might be argued that the legislative history would support some easing of current departure policy. On the other hand, it appears that the Parole Commission's 20 percent departure rate included departures based, at least in part, on a defendant's cooperation. This fact suggests, in turn, that the relevant guideline figure to compare with the Parole Commission's 20 percent departure rate would be the guidelines' overall departure rate -- i.e., the rate including substantial assistance departures. As discussed in Part III, below, the overall guideline departure rate is about 28 percent.

(2) Support for Comprehensive Consideration of Offender Characteristics -- But Regulated by Guidelines

Various sections of the Senate Report indicate that Congress wanted sentences to reflect "a comprehensive examination of the characteristics of the particular offender."Senate Report at 53. However, the means by which Congress apparently thought offender characteristics would be brought into the sentencing calculus was not through open-ended departures or broadly proscriptive policy statements. Rather, the Senate Report indicates a preference for factoring offender characteristics into sentences through a system of guidelines that would seem to be even more detailed than the current version of the guidelines.

This congressional vision of highly detailed guidelines is, for example, reflected in the portion of the Senate Report devoted to explaining the intent of 28 U.S.C. 994(b) -- the cornerstone provision in the Commission's enabling statute that instructs the Commission to "establish a sentencing range" "for each category of offense involving each category of defendant." The Report provides:

This subsection is of major significance. It contemplates a detailed set of sentencing guidelines... The [Senate Judiciary] Committee expects that there will be numerous guideline ranges, each range describing a somewhat different combination of offender characteristics and offense circumstances. There would be expected to be, for example, several guideline ranges for a single offense varying on the basis of aggravating and mitigating circumstances. The guidelines may be designed and promulgated for use in the form of a series of grids, charts, formulas, or other appropriate devices, or perhaps a combination of such devices. Whatever their form... the effects of individual factors... would be traceable to Sentencing Commission determinations. The result should be a complete set of guidelines that covers in one manner or another all important variations that commonly may be expected in criminal cases, and that reliably breaks cases into their relevant components and assures consistent and fair results....

For a particular penal offense... there might be numerous guideline ranges, each keyed to one or more variations in relevant factors.... All the ranges together, however, would be expected to cover the spectrum from no, or little, imprisonment to the statutory maximum, or close to it, for the applicable class of offense....

The Committee expects the Commission to issue guidelines sufficiently detailed and refined to reflect every important factor relevant to sentencing for each category of offense and each category of offender, give appropriate weight to each factor, and deal with various combinations of factors.Id. at 168-69 (citations omitted). A footnote to this section further stresses both Congress's view as to the importance of offender characteristics as well as its expectation that they would be dealt with through detailed guidelines: "For example, it is possible in some cases that the sentencing recommendation for a particular type of case will vary as to length or type of sentence because different purposes of sentencing apply in different categories of offenders convicted of basically similar offenses." Id. at 168 n.404.

This concept -- detailed guidelines accounting for a comprehensive array of offender characteristics -- is also reflected in the portions of the Senate Report explaining Congress's intent in adopting 994 (d) and (e) (the statutory sections that direct the Commission's attention to various offender characteristics).See id. at 171-75. The Report concludes its discussion of how the Commission is to deal with offender characteristics by stressing that it is the Commission -- and, notably, not the courts individually through departures -- that should have primary policy-making responsibility for offender characteristics:

It should be emphasized... that the Committee decided to... permit the Sentencing Commission to evaluate [offender characteristics'] relevance, and to give them application in particular situations found to warrant their consideration. The Committee believes that it is important to encourage the Sentencing Commission to explore the relevancy to the purposes of sentencing of all kinds of factors, whether they are obviously pertinent or not; to subject those factors to intelligent and disappassionate professional analysis; and on this basis to recommend, with supporting reasons, the fairest and most effective guidelines it can devise.Id. at 175.

(3) "Generally Inappropriate" Factors and Prison

As Table I illustrated, the Commission decided to treat the offender characteristics that 28 U.S.C. 994(e) designates as "generally inappropriate" for prison determinations as "not ordinarily relevant" for purposes of departure. The legislative history to subsection (e), however, indicates that Congress had a narrower, more particularized focus than the approach taken by the Commission suggests. The Senate Report provides simply, "The purpose of the subsection is, of course, to guard against the inappropriate use of incarceration for those defendants who lack education, employment, and stabilizing ties."Id. (emphasis added).

Thus, in assessing the flexibility the Commission has to address the offender characteristics enumerated in subsection (e), it appears that Congress's concern was asymmetrical: Congress wanted to ensure that the lack of the enumerated factors would not increase the likelihood of prison -- not that these factors could have no bearing on the possibility of probation. Portions of the Senate Report that discuss approaches the Commission might take to address the offender characteristics listed in the statute support this interpretation. The following excerpts are illustrative:

Subsection (e) specifically requires that the Sentencing Commission insure that the sentencing guidelines and policy statements reflect the "general inappropriateness" of considering education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant in recommending a term of imprisonment or the length of a term of imprisonment. As discussed in connection with subsection (d), each of these factors may play other roles in the sentencing decision; they may, in an appropriate case, call for the use of a term of probation instead of imprisonment, if conditions of probation can be fashioned that will provide a needed program to the defendant and assure the safety of the community.Id. at 174-75 (emphasis added).

* * * *

Subsection (e) specifies that education should be an inappropriate consideration in determining to sentence a defendant to a term of imprisonment or in determining the appropriate length of such a term. The Commission might conclude, however, that the need for an educational program might call for a sentence to probation if such a sentence were otherwise adequate to meet the purposes of sentencing, even in a case in which the guidelines might otherwise call for a short term of imprisonment.Id. at 172-73 (emphasis added).

III. A Brief Review of Relevant Data

Since 1991, the Commission's Monitoring Office has collected information on all cases involving departures from the prescribed guidelines range. (Prior to that year, information from a 25 percent random sample of departures was collected.) In 1991, approximately 81 percent of the cases were sentenced within the applicable guideline range. The number of substantial assistance departures in 1991 was almost 12 percent -- about double the percent of all other downward departures (5.8%). The percent of upward departures was relatively nominal in 1991-- less than two percent.

The 1994 departure data indicate change since 1991. "Within guideline" sentences have dropped from 81 percent in 1991 to 72 percent in 1994 -- a decrease of almost ten percent. In turn, the percent of substantial assistance departures during this same period increased dramatically, from 12 percent in 1991 to close to 20 percent (19.5%) in 1994. While the percentage of other downward departures has also increased since 1991, this increase is far less than with substantial assistance departures -- 5.8 percent in 1991 compared to 7.6 percent in 1994. The percent of upward departures has actually decreased since 1991, from 1.7 percent in 1991 to 1.2 percent in 1994. From these data it is clear that the vast majority of departures from the sentencing guidelines are for defendant assistance to the government. See Table III.

The most frequently cited reasons for downward departures in non-substantial assistance cases include: sentence agreed to in a written plea agreement; criminal history category over-represents the defendant's prior criminal conduct or record; general mitigating circumstances; family ties and responsibilities; physical condition; instant offense behavior was an isolated incident; and diminished capacity. Each of these reasons represented at least five percent of the reasons for the non-substantial assistance downward departures. (Of course, as a percentage of all cases the frequency is considerably lower. For example, while "pursuant to a plea agreement" accounts for 24 percent of all downward departures, departures based on this factor occurred in only 1.7 percent of all cases sentenced in 1994.) See Table IV.

The only frequently cited reason for the upward departures is the inadequacy of the defendant's criminal history category based on the seriousness of the defendant's prior conduct or the risk of future misconduct based on the defendant's prior conduct or record. See Table V. The frequently cited reasons for both downward and upward departures mentioned above were fairly consistent from year to year.

IV. Standards of Appellate Review

Section 3742 of title 28 establishes a key feature of the SRA, the right of an aggrieved party to appellate review of a departure from the guidelines. The statutory standard for appellate review of a departure is, however, broad -- requiring only that the courts of appeals determine whether the departure is "unreasonable" in light of several enumerated factors.See 28 U.S.C. 3742 (e)(3). To make appellate review of departures consistent and workable, courts of appeals have therefore had to develop more detailed standards to guide their review process. Because changes in the Commission's departure policy could, in turn, have implications for the appellate review process, this section briefly outlines the approach courts of appeals take in reviewing departures.

The First Circuit was the first court to address the issue of appellate review of departures in United States v. Diaz-Villafane.874 F.2d 43 (1st Cir.), cert. denied, 110 S. Ct. 177 (1989). Pursuant to Diaz-Villafane, the court must 1) review the departure circumstances to determine whether they are factors of a kind or to a degree that may justify departure; 2) review the evidence to determine whether the record supports a finding that the departure circumstances "actually exist"; and 3) determine whether the degree of departure

was reasonable. Review of the first factor is "essentially plenary," suggesting minimal deference to the district court. With respect to the second and third factors, appellate review is deferential. The appellate court reviews factual issues under a clearly erroneous standard, and reviews the reasonableness of the degree of the departure for an abuse of discretion. While a few appellate courts have modified the analysis slightly,See, e.g., United States v. Hummer, 916 F.2d 186 (4th Cir. 1991)(uses a similar four-part test that asks the additional question of whether the departure factor is of sufficient importance to warrant a sentence outside the guideline range). most circuits have mirrored the Diaz-Villafane test.See, e.g., United States v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991); United States v. Lang, 898 F.2d 1378 (8th Cir. 1990); United States v. White, 893 F.2d 276 (10th Cir. 1990); United States v. Barbotin, 907 F.2d 1494 (5th Cir. 1990); United States v. Joan, 883 F.2d 491 (6th Cir. 1989).

In 1993, however, the First Circuit modified Diaz-Villafane in United States v. Rivera 994 F.2d 942 (1st Cir. 1993) (Breyer, J.). to give district courts a modest amount of additional deference with respect to their departure determinations. The Rivera court explained that plenary review would be limited to determine either (1) "whether or not the allegedly special circumstances (i.e., the reasons for departure) are of the 'kind' that the Guidelines, in principle, permit the sentencing court to consider at all," or (2) the "nature of [a] guideline's 'heartland' (to see if the allegedly special circumstance falls within it)."Id. at 951. Thus, legal interpretations of the words of a guideline would continue to be subject to plenary review.

However, when the issue on appeal is "whether the given circumstances, as seen from the district court's unique vantage point, are usual or unusual, ordinary or not ordinary, and to what extent," the circuit court should consider the sentencing judge's superior "feel" for the case.Id. A district court likely will have special competence to decide such issues because it has seen more ordinary guideline cases than the appellate court and thus would have a better idea of what constitutes an "unusual" case.Id. See also, United States v. Canoy, 38 F.3d 893, 908 (7th Cir. 1994)(district court has a unique vantage point to determine whether family circumstances are extraordinary); United States v. Simpson, 7 F.3d 813, 820 (8th Cir. 1993)(directing the district court's attention to Rivera on resentencing).

Whether the Diaz-Villafane or Rivera standard is appropriate may be resolved by the Supreme Court later this year. On September 27, 1995, the Court granted certiorari in Koon v. United States34 F.3d 1416 (9th Cir. 1994), cert. granted, ___U.S. ___, (No. 94-1664, Sept. 27, 1995). to review the Ninth Circuit's de novo determination that the district court relied on impermissible departure factors when it granted an eight-level departure.

V. What Critics Say

A. In General

A review of the many scholarly articles written about the guidelines reveals that critics apportion responsibility for a perceived inflexibility in the current guideline system to three groups: Congress, the Commission and the courts. Congress is criticized for enacting mandatory minimum statutes and for tying substantial assistance departures to government motions. The Commission is blamed for designing an overly mechanical system that strips consideration of an offender's individual qualities from the sentencing process.

District and the appellate courts are criticized as well: district courts for not exercising the discretion that was left to them and appellate courts for ruling that the Commission had adequately considered aggravating and mitigating factors when it is not clear how adequate that consideration was. As one critic put it, "Some of the courts that have denied departures seem to have been motivated by the impression that departures violate the spirit of the guidelines and ruin any uniformity the system hoped to achieve."

The following sections illustrate the broader criticisms that have been levied at the guidelines' offender characteristics and departure policies.

B. Characteristics "Not Ordinarily Relevant"

Professor Daniel J. Freed of Yale Law School wrote in 1992 that the guidelines process is at work on two different tracks. One is the visible, officially reported level of adherence to (and open departure from) the guidelines. The second is the level of quiet, non-compliance in reaction to "appellate rejection of reasonable departures from unreasonable guidelines. Increasingly, the second, underground level of sentencing seems to be displacing the first, visible level...." The Commission's tightening of "loopholes, combined with strict enforcement by courts of appeals hostile to departures, has increased the level of non-compliance in trial courts."

Freed criticizes the policy statements in Part 5H that identify many offender characteristics as "not ordinarily relevant" to sentencing. He argues that these policy statements are inconsistent with 18 U.S.C. 3553(a) and 3661. In section 3553(a) judges are directed to consider the history and characteristics of the offender and section 3661 provides that no limitation is to be placed on the defendant's background information for a judge to consider in determining an appropriate sentence. Freed argues that the Commission has not provided reasons for designating offender characteristics as "not ordinarily relevant."

C. Mechanical Handling of Mitigating Factors

In the keynote address at The Yale Law Journal's 1992 Conference on the Federal Sentencing Guidelines, Marvin E. Frankel, former U.S. district judge for the Southern District of New York, criticized the Commission's "relatively cursory and mechanical handling of mitigating factors" as promoting undue sentencing severity. By designating the offender characteristics identified by Congress (such as age, education, family ties) as not ordinarily relevant, Frankel argued that the Commission has eliminated reasons traditionally used by judges as mitigating factors; many courts of appeals have then tended to interpret the phrase "not ordinarily relevant" as "never relevant" and thus compounded the rigidity of the guidelines. Frankel urged that judges be given more leeway to depart downward.

D. Guided Discretion Model

In an early article criticizing the guidelines, Charles J. Ogletree, Jr., then visiting professor at Harvard Law School, wrote, "The Commission failed to draft guidelines addressing some of the complex issues involved in sentencing, particularly the significance of the purposes of sentencing and the individual characteristics of offenders.... The Commission also failed to address through the promulgation of guidelines the particular problem of racial disparity in sentencing."

Ogletree urged the Commission to increase consideration of offender characteristics by adopting a new model that would specify offense level reductions for various mitigating reasons. According to Ogletree, treating poverty, family instability, and similar characteristics as mitigating factors would help reduce racial disparities. "It is true that the primary mandate of the Commission was to establish guidelines that would eliminate disparities in the sentences of similarly situated offenders, but offenders who differ from one another in their personal circumstances are not similarly situated." A guided discretion model would allow more attention to the underlying purposes of sentencing because offender characteristics raise different rationales for sentences; for example, rehabilitation is a more important purpose than retribution in designing an effective sentence for a youthful offender.

E. Other Criticisms

The Commission should be aware that a significant amount of additional literature has been generated that deals with offender characteristics and departures. Many of the articles that have been written make proposals with respect to a particular offender characteristic or set of characteristics (e.g., offender's history of substance abuse, offender's role as primary caretaker in family, offender's victimization by spouse).

VI. State Guideline Systems

An examination of state guideline models reveals that, while the majority have adopted departure provisions, most states have not developed approaches as detailed or restrictive as the federal system. Instead, state systems providing for departures generally permit the sentencing court to simply depart for "substantial" or "compelling" reasons or provide nonexclusive lists of reasons for departures. The state systems reviewed range from the North Carolina guidelines, which do not permit standard departures, to the Pennsylvania system, which not only authorizes departures, but also severely restricts appellate review of the court's decision to depart. This section compares the offender characteristic and departure provisions of the North Carolina, Washington, Minnesota, and Pennsylvania guidelines. These four systems were selected as representative of the various state departure models.

A. Offender Characteristics

The North Carolina, Washington, and Pennsylvania guidelines do not specifically prohibit the sentencing court from considering certain offender characteristics in determining a defendant's sentence. Indeed, North Carolina specifically permits a court to consider offender characteristics that are considered "not ordinarily relevant" under our Part 5H (e.g., defendant age, employment history, drug treatment, family ties, and community ties), in determining whether a case is aggravating or mitigating.

Likewise, Pennsylvania allows the sentencing court to rely on status and stability factors -- i.e., education and employment status -- in deciding upon a specific sentence within a given sentencing range. Of the states reviewed, only the Minnesota guidelines prohibit a sentencing court from considering certain offender characteristics. This prohibition has been modified somewhat by the Minnesota courts, however, which have established that although a sentencing court may not rely on offender characteristics in determining whether to impose a durational departure, a court may rely on these factors (e.g., a defendant's family ties and employment record), in determining the appropriateness of a dispositional departure.A durational departure is a departure in the length of a defendant's sentence. A dispositional departure, on the other hand, is defined as a departure from one type of incapacitation to another (e.g., from incarceration to probation).

B. Departure Standards

All of the state guidelines reviewed contained departure provisions except for North Carolina. The North Carolina guidelines structure includes three broad sentencing ranges and a sentence outside these sentencing ranges is considered illegal. Similar to the North Carolina guidelines, the Pennsylvania guidelines provide three broad sentencing ranges. However, under the Pennsylvania guidelines a sentencing court is permitted to depart or sentence outside the three ranges. Both the Washington and Minnesota sentencing guidelines permit departures for "substantial and compelling reasons."

C. Reasons for Departure

The Minnesota and Washington guidelines permit departures for reasons similar to Part 5K, including diminished capacity and extreme conduct, as well as for reasons that the federal guidelines include as mandatory Chapter Three adjustments (e.g., vulnerable victim and role in the offense). The lists of reasons to depart are nonexclusive and are provided without detailed commentary. The Pennsylvania guidelines do not provide reasons to depart, relying instead on a statement that the reasons for departure "should not include aspects of the case that are already incorporated in the guidelines." Although the North Carolina guidelines do not permit departures, the lists of aggravating and mitigating factors for the court to consider in selecting the appropriate range contain many of the same factors that are reasons for departure in the federal guidelines, including, inter alia, extreme conduct, coercion or duress, and diminished capacity. None of the state guidelines reviewed specifically provide for substantial assistance departures.

D. Unique Provisions

Although the North Carolina guidelines prohibit departures, in limited circumstances the sentencing court is authorized to impose intermediate punishment (e.g., boot camp or electronic monitoring) when the guidelines mandate active incarceration. This option is available if the court finds that "extraordinary mitigating factors of a kind significantly greater than the normal case exist." North Carolina also provides that in the case of drug trafficking, the defendant must receive a sentence of active imprisonment unless the court finds that the defendant provided substantial assistance in the identification, arrest, or conviction of another. If the court finds substantial assistance, the court may impose active, intermediate, or community punishment.

A distinguishing feature of the Washington guidelines is the statutory first time offender waiver provision. Under this provision, the court has broad discretion to sentence outside the sentencing range if the defendant has no prior felony offenses and if the defendant's current offense is not a violent offense. Neither the government nor the defendant can appeal the court's decision with regard to a first time offender waiver. Finally, Minnesota case law has established that a departure sentence generally should not be more than twice as long as the presumptive sentence.See State v. Evans, 311 N.W.2d 481 (Minn. 1981).

E. Appellate Review

Unlike federal appellate courts, which review certain aspects of the departure decision under a strict, plenary standard, state courts generally provide limited appellate review of a court's decision to depart. Under the Washington and Minnesota systems, the sentencing court's decision to depart is subject to review under an abuse of discretion standard. For discretionary decisions by a sentencing court, which includes decisions to depart, the Pennsylvania statute permits a "petition for allowance of appeal ... where it appears a substantial question that the sentence is not appropriate." The Pennsylvania appellate court will find no substantial issue regarding appropriateness of sentence if the sentencing court had the benefit of a presentence investigation report and there is evidence the court considered it. Under these circumstances, the sentence is presumed valid. If an appeal is allowed, the standard of review is manifest abuse of discretion, and the appellate court will affirm unless the sentence is unreasonable.

F. Departure Rates

Table VI displays the 1993 departure rates for Washington, Minnesota, Pennsylvania and the United States Sentencing Commissions (excluding substantial assistance departures). Minnesota has the highest combined rate of departure at 21.3%. This may be explained by the fact that Minnesota has a single sentencing range for a given offense seriousness and criminal history category and the ranges are very narrow (top of the range is 8-10% greater than the bottom of the range). At 16 percent, Pennsylvania's rate of departure is also relatively high (compared to the federal rate of 7.7 percent). This could be a function of the lack of detailed restrictions on a court's departure authority and the strict standards governing appellate review.

VII. Options for Refinement

Outlined below are options that the Commission might wish to consider to simplify or otherwise improve the guidelines' treatment of departures and offender characteristics.

A number of these options overlap and a number would seek to improve the guidelines by essentially competing methods -- for example, some would "simplify" by dropping specificity and some would "clarify" by adding specificity. A complete analysis of these options would benefit from further case law review and empirical data. In this regard, an extensive departure study initiated by Commissioners Gelacak and Nagel could contain highly instructive information.

A. Simplify/Clarify

1. Replace "not ordinarily relevant" language with departure standards stated positively. For example, policy statement 5H1.1 currently states, "Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration." This language could be changed by deleting the first sentence and providing the court with information as to when age may be an important sentencing consideration. For example, the policy statement could explain that with respect to offenders who have a history of violence and whose current offense is a violent offense, then the younger the offender, the greater the likelihood of recidivism, and the greater the justification for using age as an aggravating factor.

2. Establish additional standards such as specifically recognizing departures based on a single act of aberrant behavior, or a combination of factors which alone may not be appropriate to justify a departure; provide examples of "exceptional case."

B. Reduce/Combine

Eliminate unnecessary commentary or language and streamline the guidelines by combining similar concepts into single section.

1. Delete policy statements 5K1.7 (Role in the Offense), 5K1.8 (Criminal History), and 5K1.9 (Criminal Livelihood) as duplicative and unnecessary.

2. Delete infrequently applied 5K departure provisions (e.g., 5K2.1-2.2, 5K2.4-2.5, 5K2.7, 2.10, 2.14-2.15).

3. Combine Chapter Five 5, Parts H and K into a single Part, possibly with introductory commentary from Chapter One.

C. Redesign

1. Redesign the guidelines to be more "advisory" by:

(a) Expanding departure reasons to include all Chapter Three factors (except acceptance of responsibility) as reasons for departure and incorporate infrequently applied Chapter Two specific offense characteristics.

(b) More definitively stating the Commission's view as to how courts of appeals should view departures. For example, the Commission might more clearly state its view as to the proper relationship between the guidelines and the courts; i.e., that it is the Commission's responsibility to set general guidelines, but the sentencing judge's responsibility to determine whether the guideline recommendation is correct, and, if not, to sentence appropriately outside the guidelines.

(c) Allowing the court to consider certain factors for dispositional departures (e.g., employment status, family responsibilities).

2. Increase "presumptiveness" of the guidelines by:

(a) Limiting departure length by indicating, for example, that a departure below the guidelines of greater than half of the lowest guideline sentence may only be given in extraordinary cases and an aggravating sentence of greater than twice the maximum in the guideline range may only be given in extraordinary cases.

(b) Limiting the increase or decrease that a given departure factor should have on an offender's sentence and limiting the cumulative total of such adjustments to perhaps half or twice the guideline lower and upper limits, respectively.

3. Establishing a "mixed model." Create aggravating and mitigating ranges to handle most current departure issues but allow departures outside of these ranges very rarely. (This approach is similar to North Carolina's.) There could be a larger list of factors allowed for aggravating or mitigating the sentence than under current practice and thus greater latitude to "adjust" the sentence; but the ability to go further than these ranges would be tightly constrained.

United States Sentencing Commission