Downward Departure

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As befits the specific emphasis of this chapter, a particularly illustrative model for exploring the limitations imposed on prospects for Restorative Justice concerns the

Guidelines' treatment of mental health issues, addressing both the offender and the victim of the offense. Tellingly, the Guidelines only consider mental health factors in the context of a departure from the applicable guideline range.

Addressing offender mental health issues first, 'diminished capacity' provides an 'encouraged' ground for downward departure. As amended in 1998, this portion of the Guidelines indicates that a departure 'may be warranted ifthe defendant committed the offense while suffering from a significantly reduced mental capacity'. According to the guideline commentary, this requires a 'significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful' (US Sentencing Commission, 2000, s. 5K2.13).

Interestingly, while the Insanity Defense Reform Act (1987) does notrecognize behavioral disorders as a form of insanity, the Sentencing Commission included volitional impairments in addition to cognitive disabilities as an appropriate sentencing consideration (United States v. McBroom, 1997). The federal courts have recognized major depression (UnitedStates v. Ribot, 1999), post-traumatic stress disorder (UnitedStates v. Cantu, 1993), bipolar or manic-depressive disorder (United States v. McMurry, 1993), and schizophrenic disorder (United States v. Ruklick, 1990) as acceptable bases for departure pursuant to this provision.

This departure option is not available, however, if 'the significantly reduced mental state was caused by the voluntary use of drugs or other intoxicants'. Departure is also obviated if '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 if 'the defendant's criminal history indicates a need to incarcerate the defendant to protect the public'. Overall, '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' (US Sentencing Commission, 2000, s. 5K2.13).

In addition to the requirement of significant mental health impairment, downward departure is further predicated upon a finding that this condition contributed to the commission of the offense itself. The court is directed to determine in some fashion the degree of this impairment's contribution, and to adjust the offender's sentence downward only to that specific extent (UnitedStates v. Lauzon, 1991). Further limiting to prospects for the application of Restorative Justice, the Guidelines forbid application of a 'diminished capacity' adjustment if the offense involved 'actual violence' or the 'serious threat of violence'. Coupled with additional prohibition of departure where the diminished capacity was caused by the voluntary use of intoxicants, this reduces the availability of the departure to primarily 'white collar', regulatory, or status offenses.

The Guidelines further mandate that certain 'mental and emotional conditions' (as artificially distinguished from 'significantly reduced mental capacity') are not ordinarily relevant in determining whether a sentence should be outside the guideline range.

As such, they constitute a 'discouraged' departure basis (US Sentencing Commission, 2000, s. 5H1.3).

The courts have labeled the following as 'mental or emotion conditions' ineligible for downward departure: being a 'victim of spousal abuse' (United States v. Desorneaux, 1991), 'borderline intelligence' (UnitedStates v. Lauzon, 1991), 'suicidal tendencies' (UnitedStates v. Harpst, 1991), 'compulsive gambling' (UnitedStates v. Rosen, 1990), and 'HIV-positive status or AIDS' (United States v. Rabins, 1995; United States v. Woody, 1995). One federal court, however, did find 'panic disorder with agoraphobia' (United States v. Garza-Juarez, 1993) and having suffered 'extraordinary childhood abuse' (United States v. Roe, 1992) to justify downward departures. Another court even held that an offender's 'potential for victimization' in prison, due to his small size, immature appearance and bisexual orientation, merited a downward departure (United States v. Lara, 1990).

The Guidelines do provide one ray of hope for the application of Restorative Justice, albeit substantially after the fact of formal sentencing, with their acknowledgment that 'mental and emotional conditions may be relevant in determining the conditions of probation or supervised release'. In these circumstances, although it may not reduce the offender's sentence due to an impairment, the court can impose mental health treatment or counseling for the offender as a condition of probation or supervised release (US Sentencing Commission, 2000, ss. 5B1.3(d)(5), 5D1.3(d)(5)). Presumably, a victim-offender mediation component could be crafted to fit this scheme, providing an important reflective and integrative opportunity for all parties.

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