BY ALAN ELLIS
Criminal Justice, Summer 1999
Most of my post-Koon downward departures series has primarily focused on factors of the “encouraged” or “unmentioned” variety. In Part 7, however, I once again turn to departures of the “discouraged” type and, in particular, to seldom given departures for family ties and responsibilities under U.S.S.G. § 5H1.6.
The United States Sentencing Guidelines (U.S.S.G.) § 5H1.6 (Policy Statement) provides in relevant part:
Family ties and responsibilities . . . are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Discouraged factors are not ordinarily relevant but may be relied upon as bases for departure in exceptional cases, such as where the factor is present to an exceptional degree, or in a way that makes the case different from an ordinary case where the factor is present. While it is clear that the Commission at least considered family circumstances, and that “ordinary” family circumstances are normally discouraged factors for departure, all the circuits have recognized that the presence of family circumstances to an unusual, special or extraordinary degree can serve to remove a case from the heartland. (See United States v. Rivera, 994 F.2d 942, 948 (1st Cir. 1993); United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992); United States v. Monaco, 23 F.3d 793, 801 (3d Cir. 1994); United States v. Wilson, 114 F.3d 429, 433 (4th Cir. 1997); United States v. Thurman, et al., 29 F.3d 953, 961 (5th Cir. 1994); United States v. Brewer, 899 F.2d 503, 508 (6th Cir. 1990); United States v. Canoy, 38 F.3d 893, 906 (7th Cir. 1994); United States v. Bieri, 21 F.3d 811, 817 (8th Cir. 1994); United States v. Mondelo, 927 F.2d 1463, 1470 (9th Cir. 1991); United States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir. 1997); United States v. Mogul, 956 F.2d 1555, 1565 (11th Cir.), cert. denied, 506 U.S. 857, 113 S. Ct. 167, 121 L. Ed. 2d 115 (1992); United States v. Dyce, 91 F.3d 1462, 1466 (D.C. Circuit 1996).) Other than the fact that the Commission was aware, in formulating the Guidelines, that incarceration may undermine family responsibilities, it remains unclear what the Commission believed to be the ordinary consequences of incarceration upon a family.
Despite the Supreme Court’s decision in Koon, which gives judges wide berth in drawing the boundaries of the heartland with reference to both the specific guideline(s) at issue in a case and the structure and policies of the Guidelines as a whole, this departure still remains one of the few that is rarely granted. In fact, since the Koon decision, it is surprising that there are only three reported cases where courts have affirmed or granted a departure solely on this ground. (See United States v. Galante, 111 F.3d 1029, 1036 (2d Cir. 1997); United States v. Lopez, 28 F.Supp. 953 (E.D. Pa. 1998); United States v. Strong, No. 96-392-2, 1996 U.S. Dist. LEXIS 19322 (N.D. Ill. 1996).)
The often difficult task of identifying the dividing line between “ordinary” and “extraordinary” family circumstances is a fact-intensive inquiry that has been met by the federal courts with mixed results. The question is, what family circumstances are more exceptional than those in the heartland cases? In answering this question, a review of various district court decisions reveals departure inconsistencies under 5H1.6.
Some district courts, for example, have found extraordinary family circumstances to be present in cases where:
(1) the defendant was the sole caretaker or provider for the children, see United States v. Strong, 1996 U.S. Dist. LEXIS 19322 (N.D. Ill. 1996) (defendant is sole financial provider for her sister’s three children and her son); United States v. Moy, 1995 U.S. Dist. LEXIS 6732 (N.D. Ill. 1995) (defendant’s wife is solely dependent on him because there is no other close relative who will be able to provide her with the same care); United States v. Chambers, 885 F.Supp. 12 (D.C. 1995) (single mother of two children, ages 12 and 15, is primary care provider); United States v. Lane, 790 F.Supp. 1063, 1064 (E.D. Wash. 1992) (defendant is the mother and sole provider of six children); United States v. Cohen, 782 F.Supp. 913, 914 (S.D.N.Y. 1992) (defendant is the mother and sole care provider for her two teenage children); United States v. Handy, 752 F.Supp. 561, 561 (E.D.N.Y. 1990) (defendant is the mother and solely responsible for rearing her three children and supporting them without public assistance); United States v. Floyd, 738 F.Supp. 1256, 1261 (D. Minn. 1990) (defendant is mother of four children and sole provider); United States v. Gonzalez, 1989 U.S. Dist. LEXIS 8538 (S.D.N.Y. 1989) (defendant’s husband is in prison and the imprisonment of the defendant would place her four minor children at hazard);
(2) the incarceration of the defendant would lead to the destruction or disintegration of the family unit, see United States v. Rose, 885 F.Supp. 62, 66 (E.D.N.Y. 1995) (imprisoning the defendant would have grave and irreversible consequences for the extended family); United States v. Rodriquez, 1994 U.S. Dist. LEXIS 9825 (S.D.N.Y. 1994) (applying Guidelines sentence to both parents could deprive a medically disadvantaged child of the attention and care of both); United States v. Shabazz, 1993 U.S. Dist. LEXIS 14487 (S.D.N.Y. 1993) (defendant’s incarceration could result in the disintegration of the family); United States v. Calle, 796 F.Supp. 853 (D. Md. 1992) (incarceration of mother would wreak extraordinary destruction on dependents who rely solely on her for support);
(3) incarceration would terminate the defendant’s parental rights, see United States v. Lopez, 28 F.Supp. 953 (E.D. Penn. 1998) (in addition to being the only care-giver, defendant ran a high risk of termination of parental rights if she were sentenced to the full Guidelines¹ range of incarceration); or
(4) The defendant’s ability to procreate successfully would be impeded, see United States v. Lopez-Aguilar, 886 F.Supp. 305 (E.D.N.Y. 1995) (sentencing 29-year-old defendant without a Guidelines departure would reduce to near zero the chances that the defendant and his wife, who had undergone a complex fertility treatment, might have a child).
In other cases, however, similar sets of facts have led to opposite results. Nonetheless, a very distinctive pattern has emerged that is true of most cases at the district court level: In reported cases where district courts have chosen to depart under § 5H1.6, they have been most inclined to grant such a departure generally to female defendants, and primarily to female defendants who have been identified as “sole providers” for their children.
At the very least, each of the circuit courts has its own unique view of what family circumstances constitute the “ordinary”. Very few circuits, however, are willing to plumb the depths and identify the extraordinary. A review of various circuit court decisions also reveals that they are as diverse as those of the lower courts. (Compare, United States v. Gonzales, 933 F.2d 1117 (2d cir. 1991) (extraordinary circumstances are present where incarceration of defendant would lead to destruction of an otherwise strong family unit) with United States v. Canoy, 38 F.3d 893, 906 (7th Cir. 1994) (disintegration of existing family life is insufficient to warrant a departure).) As of yet, with the exception of the Second Circuit in Galante, supra, not one circuit court has tried to develop a departure standard that would serve to help the district courts differentiate between typical and atypical cases. With rare exceptions, the circuit courts have exhibited a reluctance to affirm district courts’ decisions to depart downward for extraordinary family circumstances, a fact that is especially true in cases where the district court has not adequately articulated its reasons for departing.
Based on the number of departures under this guideline, the circuit courts themselves can essentially be divided into“ the good, the bad, and the ugly.” The “good,” of course, are the circuits that stand above the rest in developing downward departure jurisprudence in this area. The “bad” are those circuits that rarely affirm departures for extraordinary family circumstances, and the “ugly” circuits consist of ones that have never affirmed such a departure.
Among the circuits, the Second Circuit has been the most receptive to downward departures for family ties and responsibilities, in comparison with other circuit courts, it does not second-guess the factual findings of the lower courts concerning the extraordinary nature of the defendant’s family circumstances. It is also one of the only circuits to realize that the disintegration of the family unit can do great harm to society. The Second Circuit’s unparalleled commitment to the maintenance of the family unit is best captured in United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) where the Court of Appeals observed:
The United States Sentencing Guidelines do not require a judge to leave compassion and common sense at the door to the courtroom. The government asks us, on appeal, to reverse a sentencing judge’s exercise of downward flexibility on behalf of an infant and three young children who depend entirely upon the defendant for their upbringing.
Id. at 124-25.
The Court rejected the government’s request. The Second Circuit has upheld departures based on family circumstances: (1) where the family was uniquely dependent on the defendant’s ability to maintain existing financial and emotional commitments; (2) where single parents have faced extraordinary responsibilities, see United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) and United States v. Alba, 933 F.2d 1117 2d Cir. 1991); (3) and where the defendant played a primary role in the upbringing and support of his wife and two children, see United States v. Galante,111 F.3d 1029 (2d Cir. 1997). In addition, the Second Circuit has been unwilling to disturb the decision of the district court to depart in cases where the incarceration of the defendant would lead to the destruction of an otherwise strong family unit. (See United States v. Gonzalez, 933 F.2d 1117 (2d Cir. 1991).) Regardless of the Second Circuit’s focus on the importance of the family unit, however, it has drawn the line on exceptional circumstances in cases where a departure was granted solely because of the defendant’s stable family life. (See United States v. Tejeda, 146 F.3d 84 (2d Cir. 1998) (stable family life is by no means extraordinary).) The Second Circuit has also been unwilling to depart in cases where the departure benefitted the defendant rather than the family, see United States v. Sprei, 145 F.3d 528 (2d. Cir. 1998);United States v. Londono, 76 F.3d 33 (2d. Cir 1996), or where there are other means of family support available to the incarcerated defendant’s children, see United States v. Gardner, No. 97-1091, 1997 U.S. App. LEXIS 27295 (2d. Cir. 1997 Oct. 7, 1997) (unpublished).
As has been noted in previous columns, United States v. Koon, 518 U.S. 81 (1996), teaches that appellate courts should give sentencing judges a wide berth and only reverse grants of departure for abuse of discretion since district courts have far more sentencing experience than do the reviewing courts:
Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day expierence in criminal sentencing.
District courts have an institutional advantage over apellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. (Id.at 97.)
Most recently, in United States v. Galante, supra, which stands as an excellent example of the significant impact Koon can have on departures under this guideline, the Second Circuit reaffirmed its continued commitment to the development and encouragement of downward departures in this area. In Galante, the government appealed the district court’s finding that the defendant’s family circumstances were sufficiently “extraordinary” to merit a downward departure. In departing, the district court noted that: Galante was the principal support of a family consisting of his wife and two children (ages eight and nine), who faced eviction if he were incarcerated; his father was hospitalized and on a life-support system in a chronic care facility; and his mother was a 66-year-old factory worker who might require assistance in the future. The district court also emphasized Galante’s wife’s limited earning capacity and her difficulty with English. The government argued that defendant’s family responsibilities were ordinary in that his family would suffer the same type and degree of injury felt by any family when a parent or spouse is incarcerated. In affirming the lower court’s decision to depart, the Second Circuit explained the difficulty in defining “exceptional” and, thus, the indispensable role the district court plays in making this determination:
What is exceptional is—like the beauty of Botticelli’s “Venus Rising From the Sea”—a subjective question because the overall conclusion is one resting in the eye of the beholder. Because well over 90 percent of the Guidelines cases are not appealed, district courts—which see so many more-have an institutional advantage over appellate courts in comparing one sentencing case to another. Hence, the sentencing court serves as the “:eye of the comparer” because it is in the best position to make comparisons and decide what combinations of circumstances take a case out of the ordinary and make it exceptional.
. . . The government’s arguments overestimate my willingness to second-guess the sentencing court’s fact-intensive determination. Prior to the advent of the Guidelines, the Supreme Court taught reviewing courts to “grant substantial deference to the . . . discretion that trial courts possess in sentencing convicted criminals.” . . . That is to say, I may not simply use my discretion to displace the discretion of the trial court. I am generally obliged to defer to a sentence imposed in district court, in light of that court’s special competence regarding the exceptional circumstances present in a sentencing case. Such remains the rule today. See Koon, 116 S.Ct. At 2046-47. (Galante 111 F3d at 1034-35.)
The decision in Galante, taken together with the decisions in Johnson and Alba, demonstrates that the Second Circuit has set a threshold for the “extraordinary” that can be met by nonviolent criminal defendants who have fulfilled their roles as parents and providers for their extended families. While the Second Circuit’s approach has had the effect of giving the district courts a great deal of latitude and support with respect to fashioning sentences that reflect departures for extraordinary family circumstances, other circuits have taken a more rigid approach.
The First Circuit has upheld only one departure based on family circumstances, a case in which a psychologist concluded that defendant’s stepson, who had been abused by his biological father, had a unique relationship with defendant and needed defendant’s presence to continue recovery. (See United States v. Sclamo, 997 F.2d 970, 972 (1st Cir. 1993).) In another case, it was unwilling to uphold a departure on the ground of a defendant’s pregnancy, which it considered to be neither atypical nor unusual. (See United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.), cert. denied, 112 L. Ed. 2d 316, 111 S. Ct. 353 (1990).)
The Third Circuit has upheld departures based on family circumstances where the defendant was the sole care -giver for his mentally ill wife, see United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 1993), and where a defendant who unwittingly made a criminal of his child may suffer greater moral anguish and remorse than is typical, see United States v. Monaco, 23 F.3d 793 (3rd cir. 1994). On other hand, the Third Circuit also ruled that being a good father and regularly visiting with a son are family circumstances that are quite ordinary in nature. (See United States v. Shoupe, 929 F.2d 116, 121 (3d Cir. 1991).)
The Sixth Circuit, with the exception of one case, see United States v. Fletcher, 15 F.3d 553, 557 (6th Cir. 1994) (family responsibilities, in combination with other factors are sufficient basis for downward departure), also has a poor track record for affirming departures under this guideline. (See United States v. Cantrell, No. 97-5863, 1999 U.S. App. LEXIS 2026 (6th Cir. 1999 Feb. 12, 1999) (unpublished) (defendant is not entitled to departure because he helped care for his elderly mother and three children); United States v. Washington, Nos. 94-6190; 94-6192, 1995 U.S. App. LEXIS 20510 (6th Cir. 1995 Jul. 18, 1995) (unpublished) (circumstances are not extraordinary where the children live with their mother and have other means of support); United States v. Calhoun, 49 f.3d 231, 237 (6th Cir. 1995) ( fact that the defendant’s infant child may suffer as a result of his incarceration does not give rise to an extraordinary circumstance); United States v. Brewer, 899 F.2d 503, 508 (6th Cir. 1990) (responsibility for young children will not justify departure where circumstances are not exceptional).
The Eight, Ninth, and Tenth Circuits are not far behind. The Eight Circuit, in United States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir. 1990), held that defendant’s support of his children in the difficult environment of an Indian reservation was an extraordinary circumstance supporting a downward departure; and upheld, in United States v. Haverstat, 22 F.3d 790, 796-97 (8th Cir. 1994), a downward departure for a defendant who was an irreplaceable part of the psychiatric treatment plan for his wife. But it has been unwilling to find exceptional circumstances in all other cases. (See United States v. Bieri, 21 F.3d 811, 818 (8th Cir. 1994) (sentencing both parents is no different than sentencing a single parent, which many courts have held not to be extraordinary); United States v. Harrison, 970 F.2d 444, 447-48 (8th Cir. 1992) (defendant’s status as single parent does not warrant downward departure); United States v. Garlich, 951 F.2d 161, 163 (8th Cir. 1991) (family responsibilities are not generally relevant); United states v. Shortt, 919 f.2d 1325, 1328 (8th Cir. 1990) (reversing downward departure for a defendant who was sole source of family income).) In fact, the Eight Circuit has indicated that departures under this guideline are intended to be quite rare. (See United States v. Tucker, 986 F.2d 278, 280 (8th Cir. 1993). Even the Ninth Circuit, which is known for leading the rest of the circuits in the development and encouragement of downward departure in general, has found extraordinary family circumstances to exist in only two cases. (See United States v. Cadle, No. 92-50387, 1993 U.S. App. LEXIS 4372 (9th Cir. Feb. 22, 1993) (unpublished) (wife’s extreme emotional and psychological dependence on her husband may be grounds for downward departure); United States v. Garcia, 1992 U.S. App. LEXIS 148 (9th Cir. 1992 Jan. 6, 1992) (the defendant’s family was unusually supportive in its commitment to shield him from gang-related influences).) Similarly, the Tenth Circuit has affirmed a downward departure in only one case. (United States v. Pena, 930 F.2d 1486, 1495 (10th Cir. 1991) (defendant’s family responsibilities combined with the aberrational nature of Pena’s conduct justify a departure).)
The Fourth, Fifth, Seventh, and Eleventh Circuits all have yet to affirm departures under this guideline. What is troubling about the decisions in each of these circuits is that they have provided very little guidance and incentive to the district courts to fashion a basis for granting such a departure. Of course, such decisions are little help to the development of jurisprudence in this area or, in particular, to the identification of circumstances that define the extraordinary.
Given the fact that each of these circuits has denied departures on the very same grounds that other circuits have affirmed, it remains unclear what circumstances they consider extraordinary in nature, and whether they are capable of granting similar departures. (See United States v. Wilson, 114 F.3d 429 (4th Cir. 1997) (21 year-old defendant’s responsibility and attention to his four young children is not extraordinary); United States v. Rybicki, 96 F.3d 754, 759 (4th Cir. 1996) (district court abused its discretion in departing downward based on defendant’s responsibilities for his wife and son, both of whom had medical problems); United States v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995) (reversing downward departure for extraordinary family ties where the district court found that the defendant provided invaluable care for his mentally retarded sister and mother and was crucial to the structure and stability of his family); United States v. Bell, 974 F.2d 537, 538-39 (4th Cir. 1992) (defendant’s responsibilities in a traditional two-parent family are not extraordinary, despite finding by the district court that an extended period of incarceration would lead to the destruction of the family); United States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990) (separation of a mother, who was the sole custodial parent, from her two children is not extraordinary); United States v. Winters, No. 98-60181, 1999 U.S. App. LEXIS 7853 (5th Cir. 1999) (there is no evidence that defendant’s family will suffer any more than any family suffers when one member is sentenced to prison); United States v. Harrington, 82 F.3d 83, 90 (5th Cir. 1996) (imposition of prison sentences normally disrupts parental relationships); United States v. Brown, 29 F.3d 953, 960-61 (5th Cir.), cert. denied, _ U.S._, 115 S. Ct. 587 (1994); United States v. Hendriex, 29 F.3d 953, 961 (5th Cir. 1994) (that defendant’s three children would be left with their grandmother due to his incarceration is not extraordinary); United States v. Canoy, 38 F.3d 893, 906 (7th Cir. 1994) (disintegration of existing family life is insufficient to warrant a departure, as that is to be expected when a family member engages in criminal activity that results in incarceration); United States v. Allen, 87 F.3d 1224, 1225 (11th Cir. 1996) (incarceration of defendant who is primary caretaker of an infirm parent is not extraordinary); United States v. Gomez-Villa, 59 F.3d 1199, 1202 (11th Cir. 1995) (defendant’s financial responsibilities to his college-age children is not extraordinary); United States v. Mogel, 956 F.2d 1555, 1564 (11th Cir. 1992) (that defendant has two minor children to support and a mother who lives with her is not extraordinary); United States v. Cacho, 951 F.2d 308, 311 (11th Cir. 1992) (district court properly refused a downward departure because imposition of prison sentences normally disrupts parental relationships).)
In light of Koon, however, I expect to see more departures on this ground in the future. Of course, the future development of departures under this guideline depend on the circuit courts themselves; those circuits that rarely or never grant such departures must stand back, let judges be judges, and adopt a fresh approach to departures in light of the U.S. Supreme Court’s decision in Koon , the Second Circuit’s decision in Galante, and the circumstances under which other pre-Koon circuit court decisions have granted such departures.[/vc_column_text][/vc_column][/vc_row]