Criminal Law - Sentencing Guidelines - Seventh Circuit Upholds Rejection of Diminished Capacity as Mitigating Factor

Harvard Law Review, February 2012 | Go to article overview

Criminal Law - Sentencing Guidelines - Seventh Circuit Upholds Rejection of Diminished Capacity as Mitigating Factor


CRIMINAL LAW--SENTENCING GUIDELINES--SEVENTH CIRCUIT UPHOLDS REJECTION OF DIMINISHED CAPACITY AS MITIGATING FACTOR.--United States v. Garthus, 652 F.3d 715 (7th Cir. 2011).

In United States v. Booker, (1) the Supreme Court made the Federal Sentencing Guide-lines advisory. 2 It remains unclear, however, exactly how much weight district courts must place on the "advisory" Guidelines. (3) Recently, in United States v. Garthus, (4) the Seventh Circuit upheld a district court's decision to reject the Guidelines' policy of treating diminished capacity as a mitigating factor. (5) Although other grounds existed for upholding the sentence, the Seventh Circuit treated the district court's sentence as a policybased disagreement with the Guidelines. The Seventh Circuit's willingness to defer to the district court's categorical rejection of this guideline, without applying any form of closer review, expands sentencing discretion and increases uncertainty for defendants. Moreover, the result is in tension with Booker's underlying goal of "ensuring similar sentences for those who have committed similar crimes in similar ways" (6)without offending defendants' Sixth Amendment rights. (7)

Dennis Garthus pled guilty to the federal crimes of transporting, receiving, and possessing child pornography. (8) The statutory minimum sentence was 180 months, (9) but because Garthus had been convicted of molesting a minor ten years earlier, (10) the Federal Sentencing Guidelines recommended a sentence between 360 months and life. (11) Arguing that the judge should impose a sentence below the Guidelines range, Garthus's lawyer presented evidence of "diminished capacity," (12) including Garthus's IQ of 83 and his various psychological conditions. (13) She also presented evidence that Garthus was unlikely to recidivate if imprisoned for only 180 months (14) and argued that the Guidelines range was "empirically unsupported, vindictive, and excessively harsh." (15) The district court was not persuaded: concluding that there was no "guarantee ... that this urge which Mr. Garthus has will not reemerge once ... given the opportunity," (16) the court imposed a sentence of 360 months. (17) The court never specifically mentioned diminished capacity, (18) leading Garthus to appeal. (19)

The Seventh Circuit affirmed. (20) Writing for a unanimous panel, Judge Posner (21) explained that this case highlighted a conflict between two theories of punishment: retribution (or just deserts) and incapacitation. (22) In terms of just deserts, Garthus's diminished capacity would suggest that he deserved a lesser sentence. (23) At the same time, diminished capacity "makes a defendant more likely to repeat his crime when he is released from prison," so diminished capacity is an aggravating factor under an incapacitation theory of punishment. (24) The court explained that this problem was especially acute for defendants convicted of "crime[s] involv[ing] compulsive behavior, such as behavior driven by sexual desire," because "[s]uch behavior requires active resistance by the person tempted to engage in it ... and diminished capacity weakens the ability to resist." (25)

Turning to the specifics of Garthus's case, the court concluded that there was a high risk of recidivism. (26) The court explained that "the best predictor of recidivism is ... sexual interest in children." (27) The court also cited studies showing that offenders like Garthus are "more dangerous than the average consumer of child pornography" because "[a] pedophilic sex offender who has committed both a child-pornography offense and a hands-on sex crime is more likely to commit a future crime, including another hands-on offense, than a defendant who has committed only a child-pornography offense." (28)

Against these arguments in favor of a higher sentence, the court noted that the Guide-lines had "embraced a just-deserts theory" with regard to diminished capacity, treating it as a mitigating factor. …

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