Rashomon and the Criminal Law:
Mental Disability and the Federal Sentencing Guidelines
Michael L. Perlin
Keri K. Gould
The Federal Sentencing Guidelines (Guidelines) were written to eliminate,
or at least to lessen, arbitrariness and caprice and to establish objective,
normative standards against which convicted defendants' behavior could
be assessed. The Guidelines -- promulgated in response to criticisms
of indeterminate sentences and seemingly inexplicable disparities in
sentences for like crimes -- were meant to guide judges and to educate
the public about factors that could either increase or decrease sentences.
One such factor is mental disability. A federal judge can depart from
the prescribed ranges when "the defendant committed a nonviolent
offense while suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxicants." In
such cases, a lower sentence "may be warranted" to reflect
the extent to which the reduced mental capacity contributed to the commission
of the offense as long as the defendant's criminal history "does
not indicate a need for incarceration to protect the public." It
should be noted, however, that a Sentencing Commission policy statement
declares that mental and emotional conditions mitigates the defendant's
culpability or to the extent that such condition is otherwise plainly
relevant ....are not "ordinarily relevant" in determining whether
a sentence should be outside the Guidelines' ranges.
Great discretion is vested in the trial courts in determining when asentence
reduction is appropriate under the Guidelines, and decisions not to depart
from the Guidelines are generally not appealable. Only when it appears
that the district court misunderstood its authority to reduce the defendant's
sentence will appellate courts be willing to disturb sentencing determinations.
The cases reported so far reflect no coherent reading of the Guidelines
and no real understanding of the role of mental disability, short of
in exculpating insanity defense, in criminal behavior. Federal judges
are remarkably inconsistent in their reading of mental disability. The
caselaw suggests that federal judges have not seriously considered the
way mental disability should be assessed in sentencing decisions, and
that random decisions generally reflect a judge's "ordinary common
sensical read" of whether an individual defendant "really" could
have overcome his disability.
We contend that this is caused by several factors:
(1) a lack of understanding on the part of federal judges and defense
counsel as to the meaning of mental disability and its potential interrelationship
with criminal behavior;
(2) an attitude by federal prosecutors that such mitigating evidence
is a mere play for sympathy and an inappropriate factor for consideration
at the sentencing phase, an attitude given strong support by Justice
Scalia's dissent in Penry v. Lynaugh, when he argued that the presentation
of testimony to a death penalty jury about a defendant's mental retardation
and childhood sexual and physical abuse led to an inappropriate "outpouring
. . . [of ] unfocused sympathy;"
(3) the structure of the insanity defense as an all-or-nothing alternative,
causing many to believe that lesser evidence of mental disorder is simply
an insufficient factor to consider in sentencing decisions;
4) and ambivalence about mental disability as exculpatory evidence, which
frequently results in putatively-mitigating testimony serving an aggravating
function, most notably in death penalty cases.
This set of misassumptions leads to what we call the Rashomon effect
the way that multiple perspectives will lead to multiple interpretations
of the same "facts," an effect that inevitably distorts the
intent of any set of guidelines. At the roots of these misassumptions
is another set of unconscious factors that compel judicial behavior.
Most important among these factors are: (I) punitive urges that drive
the criminal justice system in spite of statutory or caselaw to the contrary;
behavior in the criminal justice system; 17 and (3) pretextual behavior
of courts and other factfinders in that system.
Although there is a robust developing literature about almost all other
aspects of the Guidelines, virtually nothing has been written on the
application of the Guidelines to mentally disabled persons. This Article
seeks to explore that subject by illuminating the ways in which prejudice,
misunderstanding, and distrust have infected the federal sentencing process.
We begin in Part II with a brief history of the Guidelines, and then,
in Part III, we show how the mental disability language in the Guidelines
was chosen. Part IV then defines "sanism"
and "pretextuality," and Part V shows how those concepts have
affected the jurisprudence of the courts on this issue. Then in Part
VI, we more closely demonstrate how the courts' decisions in this area
reflect unconscious feelings about mentally disabled defendants, feelings
that stem from our urge to punish and that are reflected in the sanist
and pretextual court system. We conclude by looking first at these questions
through a therapeutic jurisprudence lens and then by offering some modest
policy recommendations for the future such consideration will be forthcoming.