Subjective Experience and the Federal Sentencing Guidelines (Kolber)

riginally posted to Prawfsblawg. Incidentally, the bleg at the end of this post is still a live one:

In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment.  I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration.  For example, the 2009 federal sentencing guidelines state that: “Age (including youth) is not ordinarily relevant in determining whether a departure is warranted,” U.S. Sentencing Guidelines Manual § 5H1.1 (2009); “[m]ental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted,” unless they affect culpability, id.§ 5H1.3; and “[p]hysical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted,” id. § 5H1.4.

Just a few months ago, however, amendments to the guidelines took effect and now make it easier for judges to consider such offender characteristics.  As I point out in this article (p. 638 (UPDATED)), the 2010 Federal Sentencing Guidelines state that: “Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”  U.S. Sentencing Guidelines Manual § 5H1.1 (2010) (emphasis added).  Similar revisions were made to provisions covering other offender characteristics, including their “[m]ental and emotional conditions,” id. § 5H1.3, and “[p]hysical condition or appearance,” id. § 5H1.4.

I’m not suggesting that the guidelines were amended in order to allow judges to better take subjective experience into account.  Nevertheless, I think that’s a side effect of the amendments.  Incidentally, if you know of any active cases that clearly or dramatically implicate  concerns about the differential ways in which offenders experience punishment (like the recent case of a 6’9”, 500+ pound Dutch “giant”), I’d love to hear about them by email.

-AJK