Second Circuit increases judicial sentencing discretion

By Larry Heuer, PhD, Barnard College, and Michael Mishlove, JD, Foley & Lardner

Arecent decision by a U.S. appellate court appears to expand the opportunity for federal judges to exercise discretion in sentencing criminal defendants. Judicial discretion was severely limited under the Sentencing Reform Act of 1984, which established guidelines designed to minimize judicial input in sentencing that was believed to result in unwarranted disparity among defendants with similar records found guilty of similar criminal conduct.

With the introduction of the guidelines, federal judges went from having broad and virtually unreviewable sentencing discretion to limited discretion. Under the sentencing guidelines, a departure from the otherwise prescribed sentencing may be warranted when the charged offense is deemed an aberrant act.

But in a recent decision, a three-judge panel of the U.S. Court of Appeals for the Second Circuit adopted a standard for these potential downward departures from the guidelines that, while in no way restoring the pre-guideline opportunities for thoughtful deliberation, appears to give federal judges more latitude in sentencing. Zecevic v. United States Parole Commission, (Case No. 98-4061, F.3d, 1998 WL 896244, 2d Cir. 1998).

In doing so, the Court aligned itself with a minority of circuit courts that have articulated expansive interpretations of the sentencing guidelines' provision for a downward sentencing departure for "single acts of aberrant behavior."

The decision notes that the circuit courts have interpreted "aberrant behavior" in either of two ways. In one view, "a single act of aberrant behavior...generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning." United States v. Carey (895 F.2d 318, 325, 7th Cir. 1990). The decision also notes that courts employing this definition have focused on the amount of planning, the number of actions involved, and the length of time that went into a defendant's criminal conduct.

Rejecting this standard, the Second Circuit instead adopts a "totality of the circumstances" test. In this view, spontaneity and planning are not dispositive, but rather are among many factors that might be considered for deciding whether a defendant's behavior was aberrant. The decision notes that additional factors considered by courts employing the totality test include:

* The singular nature of the criminal act.

* The defendant's criminal record.

* Psychological disorders from which the defendant was suffering at the time of the offense.

* Extreme pressures under which the defendant was operating, including the pressure of losing his job.

* Letters from friends and family expressing shock at the defendant's behavior.

* The defendant's motivations for committing the crime.

As the Second Circuit noted, "[u]nder the totality test, 'when all is said and done, the conduct in question must truly be a short-lived departure from an otherwise law-abiding life.'" The Court states that their preferred standard achieves the balance between sentencing uniformity and judicial discretion that the guidelines intended.

This case suggests numerous questions likely to be of interest to the psychological community. Foremost among them concerns the effect of this broader standard on sentence variability, and the degree to which discovered disparities reflect considerations specified in the "totality of the circumstances" test versus extra-legal considerations, some of which could be ones that reflect a judge's idiosyncratic moral calculations.

A related question concerns the effect of various sentencing objectives (e.g., deterrence, rehabilitation, incapacitation and just desserts) on sentencing behavior. Judge Cabranes, one of the authors of the Second Circuit decision, has complained elsewhere (K. Stith and J. Cabranes, 1997) of the guidelines' effect of denying judges an opportunity to develop a principled sentencing jurisprudence.

If the greater discretion under the recent Zecevic decision increases such opportunities, it becomes important to understand the principles underlying such jurisprudence. In this regard, it is noteworthy that research on the psychology of fairness has devoted relatively little attention to understanding the meaning of retributive justice (just desserts), as opposed to distributive and procedural justice.

Furthermore, the vast majority of justice research focuses on the meaning of fairness to the subordinates of authority rather than the authorities themselves. In other words, as this decision permits judges a greater opportunity to dispense retributive justice, it invites the psychological community to launch the appropriate research to enhance our appreciation of their behavior.



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