Upward Departure

The Guidelines do take into account the potential mental health effects of crime upon victims, but this is implemented in a fashion distinct from Restorative Justice goals and principles. Courts may apply an upward departure from the applicable guideline range 'if a victim... suffered psychological injury much more serious than that normally resulting from commission of the offense'. Several parameters exist concerning the extent of the injury contemplated under this 'encouraged' upward departure factor. The injury should constitute 'substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim'. The impairment should prove 'likely to be of an extended or continuous duration', manifested by 'physical or psychological symptoms or by changes in behavior patterns'. The court is further directed to consider 'the extent to which such harm was likely, given the nature of the defendant's conduct' (US Sentencing Commission, 2000, s. 5K2.3).

For example, an upward departure was deemed justifiable where the victim had suffered 'particularly degrading and insulting forms' of abuse (United States v. Ellis, 1991). In another case, an upward departure was affirmed when it was determined that a victim had received nine months of therapy for 'post-traumatic stress disorder' subsequent to the offense (United States v. Chatlin, 1995). An upward departure was reversed, however, in proceedings where there was no expert opinion to support the assertion of a victim's 'extreme psychological injury' (United States v. Fawbush, 1991). While such adjustments seek to take into account the victim's experience where appropriately substantiated, they do so specifically at the offender's expense, and limit the victim's role to the satisfaction putatively derived from the imposition of a harsher sentence. Whatever the independent merits of such a system, they promote a judicial environment firmly inhospitable to the application of Restorative Justice.

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