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Answering the ‘Why’ Question: The Powerful Departure Grounds of Diminished Capacity, Aberrant Behavior, and Post-Offense Rehabilitation

Federal Sentencing Reporter, May/June 1999

At sentencing, most judges want — and too frequently never receive — an answer to two “why” questions: why did the defendant do what he did and why is he unlikely to do it again? This is no less true under the Federal Sentencing Guidelines than it was before the Sentence Reform Act of 1984 which gave rise to the guidelines. Indeed, before the guidelines, defense counsel usually addressed the “why” questions, but counsel now tend to erroneously and detrimentally believe these questions are not germane to guideline sentencing.

For example, diminished capacity and aberrant behavior are two grounds for downward departure that humanize a defendant, make him more sympathetic and help to explain why he did what he did. Extraordinary post-offense rehabilitation is a factor that can additionally provide a persuasive indicator that the criminal conduct is unlikely to reoccur. This article reviews these three powerful grounds for departure to highlight the opportunity and the importance for defense attorneys to still answer the “why” questions under the guidelines.

I. Diminished Capacity

In some instances, leaving why the defendant did what he did unanswered at sentencing may be wise, because the answer is greed and malice. For a substantial number of offenders, however, a mental disorder may have contributed to the commission of the offense. In those cases, the sentencing guidelines may provide a vehicle for a mitigated sentence. Section 5K2.13 (p.s.) has long provided for a “diminished capacity” departure when a defendant’s “significantly reduced mental capacity … contributed to the commission of the offense.” Prior to a recent amendment, however, a circuit conflict existed whether this departure was available to certain “violent offenders” because § 5K2.13 made reference only to defendants who committed “a non-violent offense.” Based on this language, the Seventh Circuit sitting en banc in United States v. Poff, 926 F.2d 588 (7th Cir. 1991), had held, for example, that a diminished capacity departure was entirely precluded if the defendant committed a “crime of violence” as that term is defined in § 4B1.2. In contrast, other courts, such as the D.C. Circuit United States v. Chatman, 986 F.2d 1446 (D.C. Cir.1993), had held that § 4B1.2 should not govern the application of § 5K2.13 and that a sentencing court should examine all the facts and circumstances of a case to determine whether a particular offense was in fact “non-violent” when contemplating a diminished capacity departure. Effective November 1, 1998, § 5K2.13 no longer makes reference to “a non-violent offense” and now provides:

A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.The amendment represents a compromise approach to the circuit conflict. The new policy statement allows a diminished capacity departure in any case if there is sufficient evidence that the defendant committed the offense while suffering from a significantly reduced mental capacity except under the three specified circumstances. Rather than focus on whether the offense qualifies as “violent,” the new version of § 5K2.13 appears to make the “need to protect the public” the key consideration in the departure inquiry. The recent amendment of § 5K2.13 also added an application note that defines “significantly reduced mental capacity” in accord with the Third Circuit’s decision in United States v. McBroom, 124 F.3d 533 (3d Cir. 1997).

McBroom, a practicing lawyer and recovering alcoholic and cocaine addict, pled guilty to one count of possession of child pornography. He recounted a traumatic history of child sexual abuse, alcohol and cocaine addiction, and obsession with pornography. While McBroom managed to practice law, he continuously abused alcohol and cocaine, frequented “peep shows,” called 900 sex lines and viewed pornographic pictures. Due to his addictions, his marriage dissolved after seven years, and he went through at least four stays in drug and alcohol treatment facilities. Although McBroom managed to stop drinking and taking drugs, he soon discovered the vast array of pornography, including child pornography, available on the Internet. In reviewing the initial denial of McBroom’s request for a diminished capacity departure, the Third Circuit concluded that “significantly reduced mental capacity” under § 5K2.13 included both cognitive impairments (i.e., an inability to understand the wrongfulness of the conduct or to exercise the power of reason) and volitional impairments (i.e., an inability to control behavior that the person knows is wrongful). Upon remand, the sentencing court found that McBroom’s situation justified a diminished capacity downward departure based on the Third Circuit’s “volitional impairment test” because his significant obsessive compulsive disorder led him to obtain Internet child pornography even though he knew he was committing a criminal offense and would soon be caught. (Indeed, even when he learned that the FBI was investigating him, he could not bring himself to simply delete the pornographic pictures from his computer.) Adopting the Third Circuit’s approach, the commentary to § 5K2.13 now expressly defines “significantly reduced mental capacity” as a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to emphasize the power of reason; or (B) control behavior that the defendant knows is wrongful. Cases from both before and after this amendment have found “significantly reduced mental capacity” to include bipolar disorder (or manic-depressive disorder), schizophrenic disorder, major depression disorder, obsessive compulsive disorder, post-traumatic stress disorder, and even just “psychological problems.”

My firm recently represented a client who received a substantial diminished capacity departure for suffering from body dysmorphia °V a “bigger is better” body disorder sometimes seen in weight-lifters. In order to get bigger, my client took steroids to which he became addicted. In order to support his habit, he sold marijuana. United States v. Knobloch, CR96-3022 (W.D. Pa., 1998). Notably, this case also raised a question as to whether the defendant was precluded from receiving a diminished capacity downward departure because, arguably, the significantly reduced mental capacity was caused by the voluntary use of drugs. The court found, however, that the “chicken came before the egg” in that the use of drugs was caused by the mental disorder, thus qualifying the defendant for the departure. Because diminished capacity is an encouraged departure, see, e.g., McBroom, supra, and because the amended policy statement seems to remove a potential categorical exclusion, more defendants should come to qualify. Notably, the new version of § 5K2.13 still provides that the extent of the departure is a matter of the court’s discretion and “should reflect the extent to which the reduced mental capacity contributes to the commission of the offense.” Thus, a defendant whose significantly reduced mental capacity contributed only slightly to the offense’s commission may merit only a small sentence reduction. Nonetheless, the defendant still qualifies for a departure.

If possible, defense counsel would be well advised to have clients evaluated by a mental health professional to determine whether a client was suffering from a significant mental disorder which may have contributed, in any manner, to the commission of his offense. Criminal Justice Act funds should be available for this purpose even when the lawyer is retained by friends or family of the indigent client. When possible, it is helpful to get the probation officer and the prosecutor on board. This does not necessarily mean that they have to wholeheartedly agree that your client is entitled to a downward departure, but merely that your position is not unreasonable.

To this end, I have recently begun to sit down with the probation officer, the prosecutor and the case agents, accompanied by my forensic mental health professional, to explain his findings and answer their questions. This, coupled with an offer to have your client evaluated by an expert of the government’s choice, can go a long way particularly if that expert agrees with yours.

Too many defense attorneys do not recognize that a white-collar criminal client may have been suffering from a significant mental disorder that contributed to the commission of the offense. How can a securities fraud offender who bilked investors out of millions of dollars in a sophisticated scheme have been mentally ill? Remember that, as noted above, McBroom had a law degree and practiced law. Abraham Lincoln, it is reported, suffered from a bipolar disorder, manic depression. Fortunately, he did not need a downward departure. In short, bright, competent people can suffer from significant mental disorders. In those cases where it contributes to criminal behavior, such individuals should be considered for a diminished capacity downward departure.

II. Aberrant Behavior

Another departure that can be considered in combination with diminished capacity and post-offense rehabilitation is “aberrant behavior.” “Aberrant behavior” can be a particularly effective argument because it can bridge the two “why” questions by simultaneously giving an account for why the defendant did what he did and suggesting exactly why is he unlikely to do it again. The guidelines refer to “single acts of aberrant behavior” in a manner that seems to permit a downward departure on this basis, and yet neither defines the phrase nor provides any insight into what the Commission might have meant when it used it. Specifically, all the Commission says in Chapter 1, Part A, Introduction section 4(d), is simply the following:

The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.

This unclear reference has, unsurprisingly, produced a disagreement among the circuits as to what type of conduct constitutes aberrant behavior allowing departure. Two cases establish what have come to be recognized as the outer boundaries of the aberrant behavior spectrum. United States v. Carey, 895 F.2d 318 (7th Cir. 1990), stands at one end of the spectrum, and United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996), stands at the other.

United States v. Carey involved a premeditated criminal scheme carried out over a long period of time. Carey, a trucking company president, engaged in a check-kiting scheme over a 15 month period. Each work day during this period Carey concealed his two over-drawn bank accounts by having his bookkeeper prepare checks to cover the fund shortage. He signed each check and frequently deposited them himself. The Seventh Circuit held that this behavior was not “aberrant.” The Court held that:

[a] single act of aberrant behavior . . . generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable. Thus, for the Seventh Circuit in Carey, spontaneity and thoughtlessness were the key criteria for an aberrant behavior departure.

Yet, in United States v. Grandmaison, a departure was allowed even when the crime involved a scheme carried out over an extended period of time. During a six-month period, Grandmaison, a member on his town’s Board of Aldermen, lobbied three of his aldermanic colleagues to award a lucrative contract for the renovation of a local junior high school to a construction company of which he was an employee. At the behest of the construction company, Grandmaison gave gratuities, gifts, and other things of value to his three colleagues before and after major contract selection votes. These lobbying efforts eventually bore fruit when the Board awarded the project to the construction company for which Grandmaison worked. Grandmaison pled guilty to a one-count information charging him with utilizing the mail system to defraud his town’s citizens of their right to the honest services of their public officials.

At the sentencing hearing, Grandmaison requested a downward departure based on a combination of factors that included aberrant behavior within the meaning of Chapter 1, Part A, Introduction section 4(d). The district court declined to depart downward because it felt that a departure based on aberrant behavior, though generally available under the guidelines, required not only a showing of first offender status and behavior inconsistent with otherwise good or exemplary character, but also spontaneity or thoughtlessness.

The First Circuit, however, reversed and held that determinations about whether an offense constitutes a single act of aberrant behavior should be made by reviewing the “totality of the circumstances” including, inter alia, factors such as pecuniary gain to the defendant, charitable activities, prior good deeds, and efforts to mitigate the effects of the crime. While spontaneity and thoughtlessness may be among the factors considered, they are not prerequisites for departure: I think the Commission intended the word “single” to refer to the crime committed and not to the various acts involved. As a result, I read the Guidelines’ reference to “single acts of aberrant behavior” to include multiple acts leading up to the commission of a crime. … Any other reading would produce an absurd result. The district courts would be reduced to counting the number of acts involved in the commission of a crime to determine whether departure is warranted. Moreover, the practical effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most defendants because every other crime involves a series of criminal acts.

Addressing the concern that this test ensures every first offender a downward departure, the First Circuit made it clear that aberrant behavior and first offense status are not synonymous and stated that, without more, first-offender status is not enough to warrant a downward departure.

The Second, Ninth and Tenth Circuits have joined the First in eschewing a limited focus on spontaneity and thoughtlessness, opting instead for a broader view of aberrant behavior. They require reviewing courts to consider the totality of the circumstances in making aberrant behavior determinations, including but not limited to, the following factors:

  • absence of pecuniary gain to the defendant
  • prior charitable and good deeds
  • efforts to mitigate the effects of the crime
  • long-term employment coupled possibly with recent unemployment
  • no prior criminal conduct
  • no abuse of controlled substances
  • economic support of one’s family
  • conduct of a government agent influencing the defendant to commit the crime
  • a marked departure from the past
  • unlikelihood of recurrence
  • defendant’s motivation for committing the crime
  • the singular nature of the criminal act
  • the spontaneity and lack of planning of the crime
  • extreme pressures under which the defendant was operating including
  • the pressure of losing one’s job
  • psychological disorders of the defendant
  • letters from friends and family expressing shock as to the defendant’s behavior.

Arguably, in these four circuits if the conduct at issue is both a short-lived divergence from an otherwise law-abiding life — possibly caused by a mental disorder which, because it’s being successful treated, is unlikely to reoccur — a downward departure based on aberrant behavior may very well be in order even if the criminal conduct was not a single, spontaneous thoughtless act.

A defendant’s brief meander into criminal activity, if it stands in stark contrast to his posture as a responsible, hard-working, fully employed, contributing member of the community and can be coupled with appropriate post-offense rehabilitative efforts, may very well lead to an aberrant behavior downward departure. Moreover, especially if combined with diminished capacity and extraordinary post-offense rehabilitation, it may enable the defendant to receive a substantial downward departure even if not all the way to a sentence of probation.

III. Extraordinary Post-Offense Rehabilitation and Extreme Remorse

McBroom, and others like him, managed to get help for their mental disorders and thus qualified for both a diminished capacity downward departure and a departure based on extraordinary post-offense rehabilitative efforts.

Evidence of extraordinary post-offense rehabilitative efforts is particularly effective in suggesting why a defendant is unlikely to reoffend.

This, too, answers another “why” question: Why should the sentencing judge take a chance on your client?

In United States v. Barton, 76 F.3d 449 (2d Cir. 1996), the defendant pleaded guilty to child pornography charges, and the sentencing court departed from the sentencing guideline range of 15-21 months in light of Barton’s psychological condition, his limited involvement with child pornography, his non-predatory nature, and his efforts towards rehabilitation. He was sentenced to a term of probation subject to electronically monitored home confinement, psychiatric and/or psychological counseling, and community service.

The Second Circuit agreed that truly extraordinary rehabilitation efforts could justify departure, but held that the evidence in Barton’s case did not justify such a finding. The court of appeals stated that the mere fact that Barton had sought rehabilitation did not of itself justify a reduction in sentence because a tentative step towards rehabilitation is not usually enough to warrant a downward departure. Barton’s psychotherapist had not cited any objective indications of his patient’s progress towards overcoming his condition. Thus, the court of appeals vacated Barton’s sentence and remanded for resentencing. Significantly, however, the Barton court invited the district court, on remand, to allow the government and Barton full opportunity to offer any further relevant evidence substantiating Barton’s rehabilitation. The opinion ended by stating that if the sentencing judge then found support in the record for a conclusion that Barton’s rehabilitative efforts were extraordinary, reducing his sentence from a minimum of 15 months to probation would not be unreasonable. On remand, the sentencing judge did just that. In another child pornography case, the Eighth Circuit also recognized that exceptional post-offense rehabilitation may warrant a downward departure. In United States v. Kapitzke, 130 F.3d 820 (8th Cir. 1997), the defendant had exposed himself in front of a 13-year-old girl. In his truck and at home, police found pictures and computer files of child pornography from the Internet. The district court departed downward based on the financial burden of the defendant’s imprisonment on his family, his susceptibility to abuse in prison, and his post-offense rehabilitation efforts. After eight months of sex offender and chemical dependency treatment, the director of the sex offender treatment program was “extremely impressed” with Kapitzke’s efforts and believed that he had a high probability of success. His chemical dependency counselor had never had a client work harder than Kapitzke and believed his prognosis was “very good.” Finally, a doctor experienced in addiction medicine described the defendant’s recovery up to that point as “truly outstanding.” Based on this evidence, the Eighth Circuit, while finding that the other stated reasons did not justify a departure, approved one on the ground of post-offense rehabilitation efforts. Because the appellate court did not know if the district court would have imposed the same sentence absent the invalid departure factors (probation conditioned upon nine months of community confinement with work release) it remanded for resentencing. On remand, the sentence was identical to the prior sentence. Downward departures for extraordinary post-offense rehabilitation have also been recognized in the area of chemical dependency. In United States v. Maier, 975 F.2d 944 (2d Cir. 1992), the defendant pled guilty to distribution of heroin and possession of heroin with intent to distribute. At her request, sentencing was delayed three months to permit her to enter a residential drug treatment program. Subsequently, sentencing was further postponed for more than a year to allow her the opportunity to pursue additional rehabilitative programs. This included a methadone maintenance program at St. Luke’s-Roosevelt Hospital in New York City, a three-week, in-patient detoxification program in Newark, and treatment by a psychoanalyst specializing in addition disorders. The sentencing court, taking note of his departure power as well as the statutory command that the sentencing judge shall consider “the history and characteristics of the defendant” and the need for the sentence imposed to provide the defendant with needed medical care in the most effective manner, departed downward from the applicable guideline range and imposed a sentence of three years probation conditioned upon Maier participating in a community drug treatment program.

In affirming, the Second Circuit discussed at length whether efforts at rehabilitation could permit a downward departure from the applicable sentencing guideline range, noting that one of the arguments espoused by the government against awarding such a departure rested in large part on the view that “rehabilitation is no longer a direct goal of sentencing.” The Maier court disagreed, noting that the Sentencing Reform Act only rejects imprisonment as a means of promoting rehabilitation. Congress wanted to make sure that no defendant was locked up in order to put him in a place where it was hoped that rehabilitation would occur. Incarceration would have to be justified by the traditional penological purposes of incapacitation, general deterrence, specific deterrence, or retribution. But Congress expressed no hostility to rehabilitation as an objective of sentencing and required sentencing judges to consider, among other things, “providing the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner”:

Since rehabilitation may not be a basis for incarceration but must be considered as a basis for a sentence, Congress must have anticipated that sentencing judges would use their authority, in appropriate cases, to place a defendant on probation in order to enable him to obtain “needed . . . medical care or other correctional treatment in the most effective manner.”

In United States v. Williams, 65 F.3d 301 (2d Cir. 1996), the Second Circuit took the highly unusual step of granting a downward departure not to reward a defendant’s post-offense rehabilitation, but rather to allow the defendant to enter a particular Bureau of Prisons drug treatment program.

The Second Circuit approved the district court’s use of its departure power to facilitate °V rather than to reward — rehabilitation by noting that 18 U.S.C. § 3553(a)(2)(D) mandates a sentencing court to take account of the defendant’s need for “medical care or treatment” in the most effective manner.

The Williams court recognized that the sentencing judge did not grant departure from the sentencing range of 130-162 months simply because Williams had entered a drug treatment program. Rather, it departed because, under the facts of the case, there was effectively no other sentence that would accord with the requirements of 18 U.S.C. § 3553(a)(2)(D):

The district court determined that Williams was an excellent candidate for rehabilitation given his prior history, demeanor, post-arrest resolve, and acceptance into a “special and selective” treatment program based on criteria apprized by experts in the field. However, the only program available to Williams would not take him unless he were within 18 to 36 months of release. To sentence him to even the minimum term of 130 months, the district court reasoned, would require Williams to wait some six or seven years to begin treatment. If in the interim . . . the program was terminated for budgetary or other reasons or Williams’ resolve weakened under the pressures of prison life, the chances of curing him of his addiction and perhaps his criminal ways would vanish.

Recognizing that the sentence reasonably accounted for Williams’s rehabilitative needs as described by 18 U.S.C. § 3553(a)(2)(D) and that if Williams was cured of his addiction, it might ultimately serve to protect the public from future criminal acts that he might otherwise commit, the court of appeals approved a lengthy supervised release term to allow the district court to sentence Williams to a prison term within his guideline range should he fail to meet the requirements of supervised release. The court of appeals, however, took the unprecedented step of then vacating the sentence and remanding for resentencing so the court could amend its sentence to ensure that, if Williams entered and then abandoned drug treatment, he would be returned to prison.

Akin to post-offense rehabilitation is the concept of a defendant’s extreme remorse. Sincere and honest remorse is another indicator that defendant is unlikely to get in trouble again. Although the guidelines may discourage the consideration of a defendant’s remorse as a basis for a downward departure in most cases, they do not contain an absolute ban on a district court’s indulging in such a consideration. Hence, the Seventh Circuit remanded a case for resentencing because the district court incorrectly believed that it could not base a downward departure on extraordinary post-offense remorse.

Since the unlikelihood of recidivism is a factor that can be argued in support of a downward departure for extraordinary post offense rehabilitative efforts, remorse can be highly persuasive by itself or in connection with post-offense rehabilitative efforts,. Moreover, it has the extra added advantage of often being true.


Defense attorneys, because of their perspective and particular role in the criminal justice system, have a unique opportunity to place an offender’s background within a proper psycho-sociological context. Taking advantage of that opportunity can be an invaluable step towards presenting a human picture of an individual defendants, and thereby provide insight into the key “why” questions that a judge, even under the federal guideline system, is necessarily concerned with at sentencing.

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus