Academic journal article The William and Mary Bill of Rights Journal

All Men Are (or Should Be) Created Equal: An Argument against the Use of the Cultural Defense in a Fost-Booker World

Academic journal article The William and Mary Bill of Rights Journal

All Men Are (or Should Be) Created Equal: An Argument against the Use of the Cultural Defense in a Fost-Booker World

Article excerpt


"[N]o question exists that the Booker-Fanfan decision will have a monumental impact on the sentencing process."1 After nearly two decades under the highlysystematic Federal Sentencing Guidelines, the federal criminal justice system was turned upside down in 2005 by the Supreme Court's holdings in the combined decision of United States v. Booker and United States v. Fanfan.2 This decision rendered the previously mandatory Guidelines merely "advisory" and opened the floodgates for judicial discretion in sentencing.3 Although academics generally applaud the decision,4 the post-Booker system allows judges to consider factors relevant to the individual defendant which are not specifically allowed for in the Guidelines. One such factor is the culture of the defendant.

This Note wül argue that a defendant's cultural background should never be taken into account in determining federal sentences, particularly in light of the recent Booker decision. Part LA will discuss the cultural defense, its uses in sentencing, and the policy arguments against its use. Part LB highlights a sample of cases where the cultural defense was successfully raised. Part ?.? looks at the history and the application ofthe Federal Sentencing Guidelines. Part ?.? explains the circuit split over the acceptance of the cultural defense by examining the six federal appeals cases that mie on the application of the cultural defense to federal sentences. Part ILC discusses the Booker decision and the judicial and academic reactions to the ruling. Part ILD briefly looks at the lone federal appeals case ruling on the cultural defense in sentencing since Booker.5 The Conclusion explains why the cultural defense should not be allowed in federal sentencing, particularly in the post-Booker world, and examines the potential impact on the cultural defense of the four proposals recently put before the Sentencing Commission to reform the federal sentencing structure. Finally, it is recommended that Congress take action through the Sentencing Commission to explicitly forbid the use of the cultural defense, regardless of which of the new sentencing regimes is implemented.


A. Introduction

1. Cultural Defense Defined

When members of ethnic or indigenous groups are charged with breaking the law, on occasion they will ask the court to consider their cultural background in judging their conduct.6 In general, however, courts do not consider the "culture" of a defendant, and instead make an effort "to apply an equal standard of justice to all people."7 There are scholars and judges who disagree with this approach and argue that cultural backgrounds should be considered in the criminal justice system.8

The term "cultural defense" broadly refers to judges considering "the cultural background of litigants in the disposition of cases before them."9 Though it can be used in civil cases,10 the cultural defense is usually raised in criminal cases.11 WmIe most frequently used in homicide cases, the defense is aslo raised in criminal prosecutions for crimes such as "animal cruelty, arson, bribery, hunting out of season, narcotics offenses, [and] sexual assault."12 The cultural defense is raised at all stages of the legal process, such as arrest, prosecution, plea bargaining, defense, and sentencing.13 This Note focuses specifically on the use of the cultural defense in the sentencing phase of criminal prosecutions.

2. Cultural Issues in Sentencing

Arguments in favor ofthe use of cultural defenses consider the moral culpability of the defendant's actions and the effect that the defendant's background has upon his actions.14 Based upon these rationales, defense counsel typically raise the cultural defense in five broad areas of sentencing: "criminal behavior accepted or expected in the defendant's culture," "stronger cultural motive for the crime," "additional punishment from the defendant' s community," "immigration consequences," and the "defendant' s unusual behavior at sentencing. …

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