The institution of the United States Sentencing Guidelines for Individuals in 1987 not only provided a framework for maintaining some consistency in sentencing across the country, but also established standards that all but ensure jail time for any person convicted of violating a federal environmental law (even persons who commit misdemeanors). While the Sentencing Guidelines do provide a long list of mitigating (and aggravating) factors that can decrease (or increase) a sentence, even first-time offenders who successfully achieve maximum mitigation usually find themselves short of a sentencing calculation that allows them to avoid jail time. Therefore, to be effective during the sentencing phase of a case, lawyers must be familiar with a rapidly developing body of case law governing when judges may depart from the Sentencing Guidelines entirely to adjust a sentence downward.
The seminal decision concerning downward departures from the Sentencing Guidelines is a 1996 United States Supreme Court decision that provided a reduced sentence for two police officers convicted in the Rodney King civil rights case. In United States v. Koon, the Supreme Court addressed two important issues regarding downward departures from the Sentencing Guidelines. First, the Court adopted a framework for determining when a sentencing court may provide for departures from the Sentencing Guidelines. This framework involves answering three questions:
1) Do unique features of the case take it outside the “heartland” of cases?
2) If so, do the Sentencing Guidelines specifically forbid departures based upon these unique considerations?
3) If not, do the Sentencing Guidelines either encourage or discourage departures based upon these unique considerations?
Second, the Supreme Court adopted a standard of review which affords significantly greater deference to the trial judge than many appellate courts had been recognizing – an “abuse of discretion” standard. In the end, the officers' sentences in Koon were reduced by nearly half because the Sentencing Guidelines had not contemplated (i) that a victim's behavior (Mr. King's) could contribute to provoking the crime, and (ii) that the publicity level in a case could subject defendants to a high probability of abuse in prison, both considerations that the trial court deemed persuasive under the facts of the case. Since the Koon decision, several bases for downward departure from the Sentencing Guidelines have been put to the test. Some of the more successful bases that may likely come into play in an environmental case include the following:
Aberrant Behavior. A downward departure may be appropriate if the crime involved spontaneous acts that are extremely uncharacteristic of the defendant. However, when acts involved any pre-planning or resemble other acts that preceded or followed the criminal act, courts have disallowed a departure.
Age and Physical Condition. When defendants are very old and in severe physical condition (usually life-threatening but not necessarily), courts have allowed for downward departures. One condition without the other will not likely support a departure.
Family Circumstances. When the defendant is a single parent, leaving behind minors with no reasonable means of financial support and acceptable guardianship alternatives, requests for downward departures have held up, at least when the crimes involved were not violent in nature.
Post-Offense Rehabilitation. Post-offense rehabilitation has also served as a basis for downward departure in sentencing. For example, one court applied a downward departure when the defendant voluntarily resigned from her job shortly after being confronted with her conduct, provided all details of her scheme to company officials and the FBI, made full restitution with interest within 30 days after her scheme was uncovered, and undertook intensive counseling and rehabilitative therapy.
Totality of Circumstances. Finally, even when no individual factor is sufficient for a downward departure, the combination of discrete factors may be sufficient to place it outside the “heartland” of cases.
In short, any factor or circumstance that is neither already accounted for in the Sentencing Guidelines or specifically disallowed by the Sentencing Guidelines is a potential basis for achieving a downward departure from the Sentencing Guidelines. No individual facing sentencing in any environmental case should proceed without creatively testing all bases for obtaining a sentence that is less than called for by the stiff Sentencing Guidelines on their face. Because the fines provision of Sentencing Guildelins for Organizations (1991) do not apply to environmental offenses, company penalties present a whole different set of challenges.
The seminal decision concerning downward departures from the Sentencing Guidelines is a 1996 United States Supreme Court decision that provided a reduced sentence for two police officers convicted in the Rodney King civil rights case. In United States v. Koon, the Supreme Court addressed two important issues regarding downward departures from the Sentencing Guidelines. First, the Court adopted a framework for determining when a sentencing court may provide for departures from the Sentencing Guidelines. This framework involves answering three questions:
1) Do unique features of the case take it outside the “heartland” of cases?
2) If so, do the Sentencing Guidelines specifically forbid departures based upon these unique considerations?
3) If not, do the Sentencing Guidelines either encourage or discourage departures based upon these unique considerations?
Second, the Supreme Court adopted a standard of review which affords significantly greater deference to the trial judge than many appellate courts had been recognizing – an “abuse of discretion” standard. In the end, the officers' sentences in Koon were reduced by nearly half because the Sentencing Guidelines had not contemplated (i) that a victim's behavior (Mr. King's) could contribute to provoking the crime, and (ii) that the publicity level in a case could subject defendants to a high probability of abuse in prison, both considerations that the trial court deemed persuasive under the facts of the case. Since the Koon decision, several bases for downward departure from the Sentencing Guidelines have been put to the test. Some of the more successful bases that may likely come into play in an environmental case include the following:
Aberrant Behavior. A downward departure may be appropriate if the crime involved spontaneous acts that are extremely uncharacteristic of the defendant. However, when acts involved any pre-planning or resemble other acts that preceded or followed the criminal act, courts have disallowed a departure.
Age and Physical Condition. When defendants are very old and in severe physical condition (usually life-threatening but not necessarily), courts have allowed for downward departures. One condition without the other will not likely support a departure.
Family Circumstances. When the defendant is a single parent, leaving behind minors with no reasonable means of financial support and acceptable guardianship alternatives, requests for downward departures have held up, at least when the crimes involved were not violent in nature.
Post-Offense Rehabilitation. Post-offense rehabilitation has also served as a basis for downward departure in sentencing. For example, one court applied a downward departure when the defendant voluntarily resigned from her job shortly after being confronted with her conduct, provided all details of her scheme to company officials and the FBI, made full restitution with interest within 30 days after her scheme was uncovered, and undertook intensive counseling and rehabilitative therapy.
Totality of Circumstances. Finally, even when no individual factor is sufficient for a downward departure, the combination of discrete factors may be sufficient to place it outside the “heartland” of cases.
In short, any factor or circumstance that is neither already accounted for in the Sentencing Guidelines or specifically disallowed by the Sentencing Guidelines is a potential basis for achieving a downward departure from the Sentencing Guidelines. No individual facing sentencing in any environmental case should proceed without creatively testing all bases for obtaining a sentence that is less than called for by the stiff Sentencing Guidelines on their face. Because the fines provision of Sentencing Guildelins for Organizations (1991) do not apply to environmental offenses, company penalties present a whole different set of challenges.