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Let Judges Be Judges! — Post-Koon Downward Departures: Part 1 — Diminished Capacity

Criminal Justice, Winter 1998

Let judges be judges! This is the clear message delivered by the Supreme Court in Koon v. United States, 518 U.S. 81,116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996)—the landmark sentencing guideline case redefining the departure powers of federal district judges. Recognizing that even under the guidelines, the “district courts retain much of their traditional sentencing discretion,” the Court noted “[t]he development of the guideline sentencing regime has not changed my view that except to the extent specifically directed by statute, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” Turning to a district court’s decision to depart from the guidelines, the High Court gave substantial deference to a trial judge’s day-to-day experience in criminal sentencing:

The district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do…. To ignore the district court’s special competence—about the “ordinariness” or “unusualness” of a particular case—would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of a trial judge to the fact-specific circumstances of the case….

Since Koon, nowhere have the appellate courts been more deferential to the experiential wisdom of sentencing judges than in the area of downward departures for diminished capacity. Diminished capacity is recognized by the Sentencing Commission as a ground for a downward departure “if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants.” (U.S.S.G. § 5K2.13.) In such cases, the commission has determined that “a lower sentence may be warranted to reflect the extent to which reduced mental capacity [has] contributed to the commission of the offense, provided that the defendant’s criminal history does not indicate a need for incarceration to protect the public.” In the language of Koon, diminished capacity is an encouraged departure.

Prior to the impact of Koon, most courts of appeals focused their inquiry in diminished capacity cases on “an individual’s inability to reason or to absorb information in the usual way” finding that an offender who is able to reason and to absorb information in the usual way was ineligible for a downward departure under § 5K2.13. (See, e.g. United States v. Withers, 100 F.3d 1142, 1148 (4th Cir. 1996) (defendant ineligible for downward departure because she failed to show that her depression rendered her unable to process information or to reason; she was fully capable of following a complex set of instructions to transport heroin successfully into the United States), cert. denied, ___ U.S. ___, 117 S. Ct. 1282, 137 L. Ed. 2d 358 (1997); , 98 F.3d 1364, 1367 (D.C. Cir. 1996) (rejecting defendant’s argument that “mental capacity” has a meaning apart from intellectual capacity, holding that psychological or behavioral disorders could not serve as a basis for departure based on reduced mental capacity absent “accompanying inability to reason”), cert. denied, 117 S. Ct. 1437 (1997); United States v. Barajas-Nunez, 91 F.3d 826, 831 (6th Cir. 1996) (diminished mental capacity is found where defendant’s condition affects ability to process information or to reason); United States v. Johnson, 979 F.2d 396, 401 (6th Cir. 1992) (defendant who “displayed considerable mental agility in his professional and personal affairs” was able to process information and to reason; thus § 5K2.13 downward departure held unavailable).) The Third Circuit has led the way in identifying “atypical” and “out of the heartland” scenarios that justify a downward departure. Its most dramatic decision is U.S. v. McBroom, 124 F.3d 533 (3d Cir. 1996), which advances the notion that a diminished capacity departure is not limited to a defendant who is unable to absorb information in the usual way and to exercise the power of reason. Rather, the court of appeals took a broader view of the term “significantly reduced mental capacity.” In McBroom, the district court ruled that the defendant, an attorney convicted of possession of child pornography, was ineligible for a § 5K2.13 departure because he was able to absorb information in the usual way and to exercise the power of reason. The Third Circuit reversed, holding that § 5K2.13 contains a volitional, as well as cognitive component—that is, it also applies to a defendant who is unable to control his conduct even though his cognitive functions are unimpaired. On remand, the district court was directed to consider the merits of McBroom’s volitional claim:

We believe that a defendant’s ability to control his or her own conduct is a relevant consideration when determining the defendant’s eligibility for a downward departure pursuant to § 5K2.13.

Thus a defendant’s reduced mental capacity prevents the individual from appreciating the wrongfulness of certain conduct, § 5K2.13 then applies so long as the other requirements of that section are satisfied (assuming the defendant is not entitled to a complete affirmative insanity defense pursuant to 18 U.S.C. s 17). Likewise, if an individual is capable of appreciating the nature, quality and wrongfulness of certain acts but is unable to control their conduct due to reduced mental capacity, § 5K2.13 may also apply. Thus, § 5K2.13 retains both a “cognitive prong” and a “volitional prong.” I believe that the following test adequately addresses my concerns that a sentencing court consider both defendant’s cognitive capacity and his or her volitional capacity when considering a downward departure pursuant to § 5K2.13: a person may be suffering from a “reduced mental capacity” for the purposes of § 5K2.13 if either:

(1) the person is unable to absorb information in the usual way or to exercise the power of reason; or (2) the person knows what he is doing and knows that it is wrong but cannot control his behavior or conform it to the law.

The first prong permits sentencing courts to consider defects of cognition. The second prong permits sentencing courts to consider defects of volition. Sentencing courts must consider both prongs before making a determination about a defendant’s “reduced mental capacity.”

McBroom developed a compulsion with regard to viewing pornography. Although he understood the moral and legal implications of this activity, according to psychiatrists who evaluated him, he was unable to discontinue the practice. In this regard, he exhibited a number of obsessive and compulsive behaviors, including sexual compulsivity. One psychiatrist who examined him diagnosed him as having an “impulse control disorder.” In a decision that has been hailed by numerous mental health professionals, the Third Circuit quoted liberally from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) in finding that, if proven, this disorder would qualify McBroom for a diminished capacity departure if it was related to the commission of his offense.

Lianne C. Scherr, a nationally recognized psychiatric, forensic social worker, and sentencing mitigation specialist, has enthusiastically responded to McBroom saying: “It is a relief to again be able to argue that some criminal behavior is the result of mental illness. This decision may point me in the direction of rehabilitation, as well as punishment, once a major factor in sentencing outcomes.”

The Third Circuit is not alone in recognizing this expansive view of diminished capacity. As early as 1993, the Ninth Circuit found that although in everyday language, “reduced mental capacity” refers to a lack of full intellectual functioning, § 5K2.13 applies to emotional conditions as well. (United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993).) Again, citing from the American Psychiatric Association’s DSM-IV, the Ninth Circuit found that mental disorders as incorporated by the guidelines, not only include mental retardation, a condition ordinarily considered as affecting mental capacity, but also mood disorder conditions that the layperson would consider emotional illnesses.

The court of appeals went on to state that defendants may be eligible for a departure under § 5K2.13 regardless of the severity of their underlying condition. The guideline provision requires only that the defendant suffer from a significantly reduced mental capacity. The test focuses on the effect of the impairment on the defendant, not the characteristics of the seriousness of the impairment itself.

Likewise, while denying a downward departure to a defendant who did not meet the “non-violent offense” requirement under U.S.S.G. § 5K2.13, the Seventh Circuit, nonetheless, recognized that the term “mental capacity” under the guidelines refers to actions as well as to understanding. In United States v. Pullen, 88 F.3d 368, 370-71 (7th Cir. 1996) (Posner, J.), cert. denied, 117 S. Ct. 706, 136 L. Ed. 2d 627 (1997), the court of appeals found that individuals who know what they are doing and that it is wrong, but cannot control their actions, are deficient in mental capacity. The Seventh Circuit has thus recognized that the term “mental capacity” as used in § 5K2.13 encompasses both a cognition prong and a volition prong. Moreover, in a decision distinguishing between “violent” and “non-violent” offenses, Judge Easterbrook has explained why it is appropriate to consider volitional impairment in making sentencing determinations:

The criminal justice system long has meted out lower sentences to persons who, although not technically insane, are not in full command of their actions…. Persons who find it difficult to control their conduct do not—considerations of dangerousness to one side—deserve as much punishment as those who act maliciously or for gain.

(Cf. U.S. v. Poff, 926 F.2d 588, 595 (Easterbrook, J., dissenting).) Similarly, the Ninth Circuit recognized in Cantu, supra at 1511, that “lenity is appropriate in determining diminished capacity because the purpose of § 5K2.13 is to treat with some compassion those in whom a reduced mental capacity has contributed to the commission of a crime” holding:

In everyday language, “reduced mental capacity” refers to a lack of full intellectual functioning. It connotes an impairment of the intellect, it fails to be able to quickly or fully grasp ordinary concepts. I [however] have treated §5K2.13 as applying to emotional conditions as well.

Treating emotional illness in the same way that I do mental abnormalities furthers the purpose of 5K2.13. The role of the guideline is lenity toward defendants whose ability to make reasoned decisions is impaired. Emotional conditions, like mental impairments, may distort or suppress the formation of reasoned decisions.

Citing Cantu, Judge Easterbrook’s dissent in Poff; U.S. v. Chatman, 986 F.2d 1446 (D.C. Cir. 1993); and U.S. v. Weddle, 30 F.3d 352 (4th Cir. 1994), McBroom reiterated that § 5K2.13 is intended to create lenity for those whose significantly reduced mental capacity cause them to commit the offense of conviction. Reasoning that such lenity is appropriate because two of the primary rationales for punishing an individual by incarceration—desert and deterrence—lose some of their relevance when applied to those with reduced mental capacity. McBroom then went on to extend those courts’ discussions of lenity to apply legal force to those who cannot comprehend right from wrong and to those who cannot control their behavior.

Noted commentator, Professor David Yellen, author of Federal Sentencing Law & Practice, which is one of the leading treatises on the federal guidelines, has commented:

For years, many District Judges have complained that the sentencing guidelines frequently force them to impose harsh sentences. Koon puts this rhetoric to the test. If they are truly looking for the authority to more carefully individualize sentences, Koon gives it to them in spades. Although the evidence so far suggests that Koon’s impact has been limited, my sense is that this is changing. As appellate courts show that they will tolerate departures that, pre-Koon, might have been overturned, District Judges are beginning to have more confidence that they actually have more power than they did previously.

In conclusion, even though a volitional test as well as a cognitive test for determining a § 5K2.13 diminished capacity downward departure may have been appropriate before 1996, after Koon and, now, McBroom, district courts may depart on that basis.

Let judges be judges![/vc_column_text][/vc_column][/vc_row]

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