§5H Amendments

• Age (5H1.1)

• Mental and Emotional Conditions (5H1.3)

• Physical Condition, Including Drug or Alcohol Dependence or Abuse (5H1.4)

• Military Service (5H1.11)

Reason for Amendments

• The “result of a review of the departure provisions” undertaken “in part in response to an observed increase in reliance on departure provisions in the Guidelines Manual in favor of an increased use of variances”

– USSG App. C, Amend. 739, Reason for Amendment (Nov. 1, 2010)

5 H1.1 Age

Used to say:

Age (including youth) is not ordinarily relevant in determining whether a departure is warranted.

Now says:

Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.

Judges think age is mitigating

• 67% -- age is ORDINARILY relevant in determining whether to depart or vary

• FY2011 – age cited as a reason to sentence below the GL range 995 times, or in approximately 6.7% of ↓ GL sentences (not sponsored by gvmt)

Youth is mitigating

• Less culpable and reform quickly

• Punishment is harsher than for adults

• Prison ↑ risk of recidivism in the young

Less culpable and reform quickly• Research indicates:

– Area of brain governing judgment, reasoning, impulse control, and the ability to accurately assess risks and foresee consequences is not fully developed until the early to mid-twenties

– More susceptible to peer pressure to engage is risky behavior than those aged 24 and older

– Unique capacity to reform

Punishment is harsher

• Particular risk of rape and other violence

• Target of sexual aggression in prison leads to 17-fold ↑ in likelihood of attempted suicide

• Solitary confinement ↑ risk of suicide 12-fold

Prison ↑ recidivism

• Exposure to more serious offenders

• Breaks family ties

• ↓ ability to earn living legally

Increased age is mitigating

• ↓ recidivism

• Punishment is harsher

Recidivism Drops with AgeSampson, Robert J. and Laub, John H., Life-Course Desisters: Trajectories of Crime

Among Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003)

Punishment is Harsher

• Greater proportion of older offender’s remaining life; effective life sentence. And harder time adjusting to prison.

• Aging process accelerated: 11.5 years older than their chronological ages after age 50

• BOP often fails to provide adequate medical treatment

Provide the evidence

–Facts about the defendant and offense

–Empirical evidence about why those facts matter to purposes of sentencing

Pepper v. US, 131 S. Ct. 1229 (2010)No question that Pepper’s• remaining drug-free for five years,• Attending college and achieving high grades,• Succeeding at work• Re-establishing a relationship with his father,• Marrying and supporting a family

Are “highly relevant” to the need for deterrence, incapacitation, and treatment and training

And “bears directly on the District Court’s overarching duty to ‘impose a sentence sufficient, but not greater than necessary to serve the purposes of sentencing”

5H1.3 Mental and Emotional Conditions

Used to say:

Mental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)

Now says:

Mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)

Also adds:

In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, App. n.6

Treatment Purpose Departure

• Does not appear to require mental illness be present to an unusual degree.

• Limited to those in Zone C• Departure to Zone B only• Requires finding that: (a) D “suffers from a

significant mental illness” and (b) “criminality is related to the treatment problem to be addressed.”

Judges think mental and emotional conditions are mitigating

• 79% -- mental condition is ORDINARILY relevant in determining whether to depart or vary; 60% said same about emotional condition

• FY2011 – mental and emotional conditions cited as a reason to sentence below the GL range 741 times, or in approximately 5% of

↓ GL sentences (not sponsored by gvmt)

Impaired mental functioning is “inherently mitigating.”

-Tennard v. Dretke, 542 U.S. 274, 285-88 (2004)

The percentage of defendants with mental illness is approximately the same regardless of criminal history category.

-USSC, Recidivism and the “First Offender” 8 (2004), available at http://www.ussc.gov/ Research/Research_Publications/Recidivism/200405_Recidivism_First_Offender.pdf.

“[M]entally ill offenders, although more likely than the general population to offend generally and violently, are less likely to reoffend, both generally and violently, than a known nondisorder offender population.”

A. Murray Ferguson, James R.P. Ogloff and Lindsay Thomson, Predicting Recidivism by Mentally Disordered Offenders Using the LSI-R:SV, 36 Criminal Justice and Behavior 5, 6 (2009).

5H1.4 Physical Condition

Used to say:

• Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted.

• Drug or alcohol dependence or abuse is not a reason for a downward departure.

Now says:

• Physical condition or appearance, including physique, may be relevant in determining whether a departure is warranted, if the condition or appearance, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.

• Drug or alcohol dependence or abuse ordinarily is not a reason for a downward departure.

Also adds:

In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, App. n.6

Treatment Purpose Departure

• Limited to those in Zone C

• Departure to Zone B only

• Requires finding that: (a) D “is an abuser of narcotics, other controlled substances, or alcohol” (b) “criminality is related to the treatment problem to be addressed.”

Judges think drug and alcohol dependence is mitigating

• 49% -- drug dependence is ORDINARILY relevant in determining whether to depart or vary; 47% said same about alcohol dependence

• FY2011 – drug dependence or alcohol abuse cited as a reason to sentence below the GL range 489 times, or in approximately 3.3% of ↓ GL sentences (not sponsored by gvmt)

0

20

40

60

80

100

120

1 2 3 4 5 6 7 8 9 10 11 12

Months

% n

o re

cidivi

sm

atment

no drug treatment

Drug Treatment

No Drug Treatment

Drug Treatment in the Community Works Even Better

• 17.9% - Intensive supervision (treatment oriented programs)

• 8.3% - Drug treatment in the community

• 6.3% - Drug treatment in prison

Especially for Repeat Offenders

• Repeat Offenders benefit more than first-time offenders from drug treatment

Long prison terms are not effective in reducing recidivism

(and may increase it!)

- “The research evidence is unequivocal that incarceration does not reduce recidivism”

Judges think physical condition is mitigating

• 64% -- physical condition is ORDINARILY relevant in determining whether to depart or vary

• FY2011 – physical condition cited as a reason to sentence below the GL range 815 times, or in approximately 5.5% of ↓ GL sentences (not sponsored by gvmt)

Physical Condition

• May increase the relative severity of the sentence. Those with chronic conditions may not receive adequate treatment in BOP

• Infirmity reduces likelihood of recidivism

Physique

• Because “[p]hysical force, or the threat of physical force, is the most common element of coercion used in prison rape,” physical build is a “particularly strong indicator of whether a prisoner will be victimized.”

Military Service 5H1.11

Used to say:

Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.

Now says:

Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.

Judges think military service is mitigating

• 64%- Stress related to military service is ORDINARILY relevant in determining whether to depart or vary

• FY2011 – military service/charitable works/ good deeds cited as a reason to sentence below the GL range 383 times, or in approximately 2.6% of ↓ GL sentences (not sponsored by gvmt)

“Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.”

– Porter v. McCollum, 130 S. Ct. 447 (2009)

• Less Culpable–Traumatic Brain Injury–Post-traumatic stress disorder–Chronic pain and below normal

physical functioning

• Less likely to recidivate

The Good from 2011

• Mitigating Role adjustment

• FSA Amendments

• Straw Purchasers

Mitigating Role §3B1.2

+ 1

- 2

All Helpful

Addition to §3B1.2

D who • is accountable for a loss amount that

greatly exceeds the defendant’s personal gain from a fraud offense

AND • had limited knowledge of the scope of the

scheme

is not precluded from mitigating role adjustment

Deletions from §3B1.2

• As with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted. (n.3(C))

• It is intended that the downward adjustment for a minimal participant will be used infrequently. (n.4)

?

It is there!

• “The Commission determined that these two sentences are unnecessary and may have the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances.”

- USSG App. C, Amend. 755, Reason for Amendment (Nov. 1, 2011)

FSA Amendments

• BoL capped at 32 if defendant was a minimal participant under 3B1.2– §2D1.1(a)(5)

The Super Vulnerable Ostrich Reduction §2D1.1(b)(15)

↓OL by 2 if D is minimal participant AND:

• D motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense;

• D received no monetary compensation from the illegal purchase sale, transport, or storage of controlled substances; and

• D had minimal knowledge of the scope and structure of the enterprise

Straw Purchasers

OL from 12 to 14 convicted under 18 USC 922(a)(6) or 924(a)(1)(A) and

knowingly distributed to a prohibited person

departure for straw purchasers where

– no SOC applies

– D motivated by intimate/familial relationship or threats/fears and o/w unlikely to commit the offense;

– D received no monetary compensation from the offense 2K2.1 n. 15

Safety Valve

• Now available for chemical precursors under 2D1.11

• 2-level ↓ if safety valve criteria met

• NOT retroactive