General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
LET JUDGES BE JUDGES! POST-KOON DOWNWARD DEPARTURES: FAMILY TIES AND RESPONSIBILITIES
BY ALAN ELLIS AND SAMUEL A. SHUMMON
All of the circuit courts have recognized that the presence of family circumstances to an unusual, special, or extraordinary degree can serve to remove a case from the heartland. However, 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, departures for family ties and responsibilities under section 5H1.6 of the United States Sentencing Guidelines are rarely granted.
The 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? A review of district court decisions reveals departure inconsistencies under section 5H1.6. Some district courts, for example, have found extraordinary family circumstances to be present in cases where: the defendant was the sole caretaker or provider for the children; the incarceration of the defendant would lead to the destruction or disintegration of the family unit; incarceration would terminate the defendant's parental rights; or the defendant's ability to procreate successfully would be impeded. In other cases, however, similar sets of facts have led to opposite results. Nonetheless, a distinctive pattern has emerged at the district court level. In reported cases where district courts have chosen to depart under section 5H1.6, they have been most inclined to grant the departure to female defendants, and primarily to female defendants who have been identified as "sole providers" for their children.
Each of the circuit courts has its unique view of what family circumstances constitute the "ordinary." Few circuits, however, are willing to identify the extraordinary. A review of circuit court decisions reveals that they are as diverse as those of the lower courts. With the exception of the Second Circuit, 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, especially 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 be divided into "the good, the bad, and the ugly." The "good" 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. The "ugly" circuits consist of ones that have never affirmed such a departure.
The Good. The Second Circuit is 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 has upheld departures based on family circumstances: where the family was uniquely dependent on the defendant's ability to maintain existing financial and emotional commitments; where single parents have faced extraordinary responsibilities; and where the defendant played a primary role in the upbringing and/or support of his wife and two children.
In addition, it 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. 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. The Second Circuit has also been unwilling to depart in cases where the departure benefited the defendant rather than the family, or where there are other means of family support available to the incarcerated defendant's children.
Koon 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. Most recently, in United States v. Galante 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 provided the principal support for his wife and two children, who faced eviction if he were incarcerated; his father was on a life-support system in a chronic care facility; and his mother was a 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.
In affirming the lower court's decision to depart, the Second Circuit explained the difficulty in defining "exceptional," and the indispensable role the district court plays in making this determination. The court reasoned that because over 90 percent of guidelines cases are not appealed, district courts have an advantage over appellate courts in comparing one sentencing case to another, such that the sentencing court 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. Galante 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 families.
The Bad. The First Circuit has upheld only one departure based on family circumstances, a case in which a psychologist concluded that the defendant's stepson, who had been abused by his biological father, had a unique relationship with the defendant and needed the defendant's presence to continue recovery. 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. The Third Circuit has upheld departures based on family circumstances where the defendant was the sole caregiver for his mentally ill wife, and where a defendant who unwittingly made a criminal of his child suffered greater moral an-guish and remorse than was typical. On the 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.
The Eighth, Ninth, and Tenth Circuits are not far behind. The Eighth Circuit, in United States v. Big Crow, held that the 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, a downward departure for a defendant who was an irreplaceable part of the psychiatric treatment plan for his wife. The Eighth Circuit has indicated that departures under this guideline are intended to be quite rare.
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: where the defendant's wife's extreme emotional and psychological dependence on her husband could be grounds for downward departure; and where 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 where the court found that the defendant's family responsibilities combined with the aberrational nature of his conduct justified a departure.
The Ugly. 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.
Alan Ellis, a former president of the National Association of Criminal Defense Lawyers, has offices in both San Francisco and Philadelphia. Samuel A. Shummon, an associate in Ellis's San Francisco office, is the co-author of Alan Ellis's Federal Prison Guidebook and editor of Federal Presentence and Post Conviction News.
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- This article is an abridged and edited version of one that originally appeared on page 48 of Criminal Justice, Summer 1999 (14:2).
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