Why are only bad acts good sentencing factors

Boston University Law Review

Volumn 88, Issue 5, 2008, Pages 1109-1163

  Hessick, Carissa Byrne ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 58149291882     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (527)

1. FED. R. EVID. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes...."). For a thorough discussion on the admissibility of a defendant's prior bad acts - e.g., as evidence of a distinctive past pattern or to impeach an accused who takes the stand - see MCCORMICK ON EVIDENCE § 190 (5th ed. 1999).
2. See Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. CHI. L.REV. 715, 716(1941) [hereinafter Note, Admissibility of Character Evidence].
3. MCCORMICK ON EVIDENCE, supra note 1,§ 191. McCormick states: The prosecution . generally is forbidden to initiate evidence of the bad character of the defendant merely to imply that, being a bad person, he is more likely to commit a crime. Yet, when the table is turned and the defendant in a criminal case seeks to offer evidence of his good character to imply that he is unlikely to have committed a crime, the general rule against propensity evidence is not applied. Id.
4. Id.
5. E.g., JOHN H. WIGMORE, A STUDENT'S TEXTBOOK OF THE LAW OF EVIDENCE 61-62 (1935) ("The accused, however, may offer his good character to evidence the improbability of his doing the act charged. This is because it has probative value . Whether it should alone suffice to create reasonable doubt, has been the subject of differing judicial opinions in giving instructions to the jury.");
6. see also CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 158 (1954);
7. WILLIAM REYNOLDS, THE THEORY OF THE LAW OF EVIDENCE AS ESTABLISHED IN THE UNITED STATES 16-17 (2d ed. 1890);
8. PITT TAYLOR, A TREATISE ON THE LAW OF EVIDENCE AS ADMINISTERED IN ENGLAND AND IRELAND 329-31 (8th ed. 1887).
9. E.g., ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 151 (3d ed. 2000);
10. Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1437-38 (2004);
11. Andrew von Hirsch, Desert and Previous Convictions in Sentencing, 65 MINN. L. REV. 591, 608 (1980).
12. But see Peter J. Henning, Prior Good Works in the Age of Reasonableness, 20 FED. SENT'G REP. 187, 187 (2008) (arguing that "consideration of prior good works [is] an appropriate issue in deciding sentences" for white-collar offenders). Douglas A. Berman has stated: I often think of honorable military service and other past good deeds by a defendant as the flip side of criminal history. Criminal history, after all, is just a past record of prior bad deeds, and every sentencing system (guideline or otherwise) provides for sentence enhancements (often huge enhancements) based on such a record of prior bad deeds. Doesn't it make some logical sense for a sentencing system to similarly provide for sentence reductions based on a notable record of prior good deeds such as military service? Douglas A. Berman, Sentencing Law and Policy: Should Prior Military Service Reduce a Sentence?, http://sentencing.typepad.com/sentencing- law-and-policy/2006/04/should-prior-mi.html (Apr. 14, 2006, 09:12).
13. Indeed, questions of practicability will turn, in large part, on the type of sentencing system employed. In a fully discretionary sentencing system, good acts would be one of many factors for a sentencing judge to consider. In systems where presumptive sentences or mandatory sentencing factors restrict judicial discretion, good acts would need to be defined in greater detail and consideration would have to be given regarding how much a prior good act would be "worth" in terms of a sentencing decrease. See infra note 278 and accompanying text.
14. Determining precisely how often courts consider prior acts at sentencing is a difficult task. At the trial level, most sentencing decisions are unpublished or are delivered orally. NORA V. DEMLEITNER ET AL., SENTENCING LAW AND POLICY: CASES, STATUTES, AND GUIDELINES 89 (2d ed. 2007). Unless a particular sentencing decision is the subject of a media account, it will become public only in the rare event that the sentencing judge elects to publish her decision or in the event that the sentence is subsequently appealed. That is not to say there is no available information about sentencing practices. Thousands of defendants are sentenced each year, so even the small percentage of those cases that result in a published opinion is a substantial number. Moreover, several jurisdictions have written sentencing criteria, and sources including the U.S. Sentencing Commission and the Bureau of Justice Statistics collect and disseminate limited statistical sentencing data. This Part draws from those sources; however, it is important to note that the information available through these sources is far from complete, and it may be subject to a number of reporting biases. For example, as the Solicitor General's Office recently explained, there are far more federal appellate decisions reversing low sentences than high sentences because (a) upward variances from the Sentencing Guidelines occur less frequently than downward variances, and (b) the government exercises greater selectivity in the sentences it chooses to appeal. Brief for the United States at 41, Claiborne v. United States, 127 S. Ct. 2245 (2007) (No. 06-5618). Therefore, while these sources may be used as an indication of whether courts are considering prior good and bad acts at sentencing, they do not necessarily give an accurate representation of how often or under what circumstances courts will alter sentences on the basis of a defendant's prior good and bad acts.
15. While some criminal laws prohibit behavior that may plausibly be described as private - such as prostitution or drug use - the criminal law generally is better described as a prohibition on public wrongs. See R.A. DUFF, ANSWERING FOR CRIME 140-46 (2007). Thus, this definition of good acts as public acts not only accurately reflects current sentencing practice, but also furthers sentencing symmetry.
16. See infra Part II.C.
17. Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998);
18. see also NIGEL WALKER, SENTENCING: THEORY, LAW AND PRACTICE 44 (1985) (characterizing previous convictions as the "most obvious example" of an aggravating sentencing factor); STANTON WHEELER ET AL., SITTING IN JUDGMENT: THE SENTENCING OF WHITE-COLLAR CRIMINALS 88 (1988) ("It is well established in criminal law that the prior record of an offender is a crucial, some would say the crucial, attribute of the defendant's background that should be considered at the time of sentencing.").
19. See EDWIN POWERS, CRIME AND PUNISHMENT IN EARLY MASSACHUSETTS 1620-1692: A Documentary History 450 (1966) (recounting a 1644 report by Massachusetts clergy on judicial discretion, which stated that "[a] judge could take into consideration whether the crime committed was the offender's 'first offense'" and that "the judge should have some latitude to choose between certain minimum and maximum sentences" (quoting 2 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 92-95 (Nathaniel B. Shurtleff ed., 1853) (1644)));
20. Note, Selective Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 HARV. L. REV. 511, 511 n.l (1982) [hereinafter Note, Selective Incapacitation] (noting that the "Massachusetts Bay Colony had recidivist laws for robbers and burglars at least as early as 1692" and that the Virginia legislature "sought to remedy the persistent problem of hog stealing by passing a statute that provided progressively more severe penalties for each subsequent offense" in 1705);
21. see also Parke v. Raley, 506 U.S. 20, 26 (1992); Graham v. West Virginia, 224 U.S. 616, 623 (1912);
22. cf. Alexis M. Durham III, Justice in Sentencing: The Role of Prior Record in Criminal Involvement, 78 J. CRIM. L. & CRIMINOLOGY 614, 616 (1987) (tracing the practice of increasing punishment for prior bad acts to a passage in the Book of Leviticus).
23. See, e.g., McDonald v. Massachusetts, 180 U.S. 311, 312-13(1901);
24. Moore v. Missouri, 159 U.S. 673, 676-78(1895);
25. see also Graham, 224 U.S. at 623 (stating that habitual offender legislation "has uniformly been sustained in the state courts, and it has been held by this court not to be repugnant to the Federal Constitution" (citation omitted)).
26. See, e.g., PETER H. ROSSI & RICHARD A. BERK, U.S. SENTENCING COMM'N, NATIONAL SAMPLE SURVEY: PUBLIC OPINION ON SENTENCING FEDERAL CRIMES 78-81 (1997), available at http://www.ussc.gov/nss/jp-exsum.htm (suggesting that while public opinion supports longer sentences for repeat offenders, "there appears to be little evidence in sentencing behavior of much public support for a 'three-strikes-and-you're-out' approach").
27. Parke v. Raley, 506 U.S. 20, 26-27 (1992) (citing U.S. DEP'T OF JUSTICE, STATUTES REQUIRING THE USE OF CRIMINAL HISTORY RECORD INFORMATION 17-41 (1991)).
28. For examples of courts permitting increased sentences on the basis of uncharged conduct, see Williams v. New York, 337 U.S. 241, 246 (1949);
29. New Jersey v. Green, 303 A.2d 312, 320 (N.J. 1973);
30. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998). For examples of courts permitting increased sentences on the basis of acquitted conduct, see United States v. Watts, 519 U.S. 148, 157 (1997);
31. People v. Dunlap, No. 217123,2001 WL 776752, at *3 (Mich. Ct. App. Jan. 16, 2001);
32. State v. Clark, 197 S.W.3d 598, 602 (Mo. 2006); State v. Winfield, 23 S.W.3d 279, 282 (Tenn. 2000).
33. See also U.S. SENTENCING GUIDELINES MANUAL § IB 1.3 application notes (2007).
34. See KATE STITH & JOSE CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 72 & 218 nn.218-19 (1998); Durham, supra note 11, at 615. Guideline sentences are presented in a grid format: "The vertical axis of the sentencing grid contains 43 'offense levels,' which are designed to quantify the seriousness of the instant offense." U.S. SENTENCING COMM'N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL GUIDELINES 1 (2004), available at http://www.ussc.gov/publicat/ Recidivism-General.pdf [hereinafter Measuring Recidivism]. Offense levels are based on the facts and circumstances - such as the offense of conviction or the amount of actual or intended harm - to which the Guidelines manual assigns various values.
35. See U.S. SENTENCING GUIDELINES MANUAL ch. 2 (Offense Conduct); id. ch. 3 (Adjustments);
36. see also STITH & CABRANES, supra, at 67-71. The horizontal axis of the sentencing grid contains six "criminal history categories," which are "designed to quantify the extent and recency of an offender's past criminal behavior." MEASURING RECIDIVISM, supra, at 1;
37. see also STITH & CABRANES, supra, at 67-71. At sentencing, the district court judge calculates an offender's offense level and criminal history score, and the cell on the sentencing grid in which the offense level and the criminal history level intersect displays the Guideline range of sentences.
38. See generally STITH & CABRANES, supra, at 192-93.
39. See infra notes 168-169.
40. POWERS, supra note 11, at 451 (quoting 2 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 92-95 (Nathaniel B. Shurtleff ed., 1853) (1644)).
41. See Edith Abbott, Crime and the War, 9 J. AM. INST. CRIM. L. & CRIMINOLOGY 32, 43 (1918);
42. Dane Archer & Rosemary Gartner, Violent Acts and Violent Times: A Comparative Approach to Postwar Homicide Rates, 41 AM. SOC. REV. 937, 940 (1976);
43. see also ADRIAAN LANNI, LAW AND JUSTICE IN THE COURTS OF CLASSICAL ATHENS 59 (2006) (mentioning that litigants in the popular courts of classical Athens presented themselves "as upstanding citizens by describing their military exploits or the public services they (and their families) have done for the state").
44. See Betty B. Rosenbaum, The Relationship Between War and Crime in the United States, 30 J. CRIM. L. & CRIMINOLOGY 722, 733-34 (1940) (describing a 1922 study by the Wisconsin State Board of Control, which mentioned "the greater leniency that may be shown to ex-service men in court, for which there is no tangible data, which would cut down the number of convictions").
45. See James D. Barnett, The Grounds of Pardon, 17 J. AM. INST. CRIM. L. & CRIMINOLOGY 490, 523 (1927) (explaining that "military service has received abundant recognition" in pardon grants and that an offender's "meritorious services [such as serving as governor]. rendered before the commission of the crime are often considered" as grounds for pardon);
46. Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 FED. SENT'G REP. 139, 140 (2001) (observing that President Truman "[p]ardoned pre-war convicts who served in the U.S. armed forces during World War II").
47. See, e.g., State v. Kayer, 984 P.2d 31, 46-47 (Ariz. 1999) ("We have on rare occasions found that a defendant's military record warranted consideration as a mitigating circumstance." (emphasis added));
48. People v. Duncan, 5 Cal. Rptr. 3d 413, 414 (Ct. App. 2003) (observing that the trial court rejected "defendant's claim that his military service should be treated as a factor in mitigation").
49. N.C. GEN. STAT. § 15A-1340.16(e)(14) (2007).
50. Id. § 15A-1340.16(e)(12).
51. See State v. Clark, 377 S.E.2d 54, 68 (N.C. 1989);
52. State v. Heath, 335 S.E.2d 350, 355-56 (N.C. Ct. App. 1985), rev'd on other grounds, 341 S.E.2d 565 (N.C. 1986);
53. State v. Hanes, 334 S.E.2d 444, 446 (N.C. Ct. App. 1985).
54. TENN. CODE ANN. § 40-35-113(13) (2007).
55. State v. Hill, No. M2004-00597-CCA-R3-CD, 2005 WL 544710, at *9 (Tenn. Crim. App. June 27, 2005). The Hill Court explained: [The military service] mitigating factor is not among the statutorily defined mitigating factors set out in Tennessee Code Annotated section 40-35-113, rather, it is [a] mitigating factor that has been recognized in other cases under a catchall subsection which includes "[a]ny other factor consistent with the purposes of this chapter." TENN. CODE ANN. § 40-35-113(13). This Court has previously stated, "With respect to [a defendant's] military service, honorable military service may always be considered as a mitigating factor consistent with the purposes of the 1989 Sentencing Act." Id. (quoting State v. Vincent, No. 02C019510-CC00303, 1997 WL 287665, at *3 (Tenn. Crim. App. June 2,1997)).
56. E.g., State v. White, No. W2006-00655-CCA-R3CD, 2007 WL 836812, at *5 (Tenn. Crim. App. Aug. 13, 2007) ("[W]hile the trial court may consider military service as a mitigating factor, this court has held that a trial court's refusal to mitigate a defendant's sentence based on past military service was not error." (citations omitted)).
57. LA. CODE CRIM. PROC. ANN. art. 894.1.B(33) (2007) (allowing consideration, as sentencing factors, "[a]ny other relevant mitigating circumstance").
58. See, e.g., State v. Anderson, 631 So. 2d 80, 83 (La. Ct. App. 1994); State v. Arterberry, 449 So. 2d 1179,1181 (La. Ct. App. 1984).
59. See, e.g., HAW. REV. STAT. ANN. § 706-62l(2)(g) (LexisNexis 2007) (stating that if "[t]he character and attitudes of the defendant indicate that the defendant is unlikely to commit another crime," that militates against imposing imprisonment and in favor of a term of probation);
60. IDAHO CODE ANN. § 19-2521(2)(i) (2004) (stating that if the "character and attitudes of the defendant indicate that the commission of another crime is unlikely," the court shall accord "weight in favor of avoiding a sentence of imprisonment");
61. ILL. COMP. STAT. ANN. 5/5-5-3.1(a)(9) (West 2007) (listing "[t]he character and attitudes of the defendant indicate that he is unlikely to commit another crime" as a factor that "shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment");
62. IND. CODE ANN. § 35-38-l-7.1(b)(8) (West 2004) (listing "[t]he character and attitudes of the person indicate that the person is unlikely to commit another crime" as a mitigating circumstance);
63. ME. REV. STAT. ANN. tit. 17-A, § 1252-C(2) (2006 & Supp. 2007) (listing "the character of the offender" as a relevant sentencing factor in determining a sentence of imprisonment);
64. N.J. STAT. ANN. § 2C:44-1(b)(9) (West 2005) (listing "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense" as a mitigating circumstance to consider in determining an appropriate sentence);
65. N.C. GEN. STAT. § 15A-1340.16(e)(12) (2007) (listing "[t]he defendant has been a person of good character or has had a good reputation in the community in which the defendant lives" as a mitigating factor);
66. N.D. CENT. CODE §12.1-32-04(9) (2007) (listing "[t]he character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime" as a factor that a court shall "accord[] weight in making determinations regarding the desirability of sentencing an offender to imprisonment").
67. See State v. Stillwell, 765 P.2d 152, 153 (Idaho Ct. App. 1988).
68. See People v. Anderson, 587 N.E.2d 1050, 1062 (III. App. Ct. 1992).
69. See Shamp v. State, No. 79A05-0702-CR-100, 2007 WL 2473227, at *2 (Ind. Ct. App. Sept. 4,2007).
70. See State v. Shackleford, No. 05-06-1602, 2006 WL 3589983, at *7 (N.J. Super. Ct. App. Div. Dec. 12, 2006).
71. See DEMLEITNER ET AL., supra note 8, at 384 ("In unstructured sentencing systems, it is difficult to measure just how much an offender's personal background and characteristics tend to influence the sentence, although anecdotal reports suggest that the influence can be sizeable.").
72. See supra notes 14-15 and accompanying text.
73. Lockett v. Ohio, 438 U.S. 586, 604-05 (1977);
74. see also infra notes 83-84 and accompanying text.
75. See, e.g., Moody v. State, 888 So. 2d 532, 596 (Ala. Crim. App. 2003);
76. State v. Moody, 94 P.3d 1119, 1132 (Ariz. 2004);
77. DeAngelo v. State, 616 So. 2d 440, 443 (Fla. 1993);
78. State v. Hand, 840 N.E.2d 151, 194 (Ohio 2006).
79. E.g., People v. Myers, 45 P.3d 756,757 (Colo. Ct. App. 2001).
80. See Jeffrey L. Kirchmeier, A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Law, 83 OR. L. REV. 631, 662 n.194, 663 n.196 (2004);
81. Peggy M. Tobolowsky, What Hath Penry Wrought?: Mitigating Circumstances and the Texas Death Penalty, 19 AM. J. CRIM. L. 345, 374 n.151 (1992). But cf. Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 851 n.76 (1992) (noting that "no state enumerates any mitigating circumstances regarding a defendant's good acts or positive qualities (apart from a defendant's cooperation in the prosecution of other offenses)" in capital sentencing statutes (citation omitted)).
82. See DEMLEITNER ET AL., supra note 8, at 94-98 (recounting the role that Oliver North's service and good works played at his sentencing);
83. STITH & CABRANES, supra note 16, at 79-80 (commenting that, prior to the enactment of the Guidelines, "the largest section of the presentence report" - which was an important document for a judge's sentencing deliberations - "dealt with the personal history and circumstances of the defendant," including "military service" and "activities (good and bad) in the community");
84. Christina Chiafolo Montgomery, Social and Schematic Injustice: The Treatment of Offender Personal Characteristics Under the Federal Sentencing Guidelines, 20 NEW ENG. J. ON CRIM. & CIV. Confinement 27, 37-38 (1993);
85. see also WHEELER ET AL., supra note 10, at 103-05 (recounting how "[s]ome combination of family, work, and community contribution are thought by most judges to be relevant to the assessment of the defendant, though these factors are rarely dispositive").
86. 28 U.S.C. § 994(d) (2000). Congress directed the Commission to consider the following factors: (1) age; (2) education; (3) vocational skills; (4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant; (5) physical condition, including drug dependence; (6) previous employment record; (7) family ties and responsibilities; (8) community ties; (9) role in the offense; (10) criminal history; and (11) degree of dependence upon criminal activity for a livelihood. Id.
87. 688 F. Supp. 191 (D. Md. 1988).
88. Id. at 193. Although the district court was bound by the Federal Sentencing Guidelines, the judge departed from the Guidelines on the theory that "the Commission did not at all take into account a defendant's military record as a factor in formulating the Guidelines, and that it is one that could result in a sentence different from the Guidelines."
89. Id. at 192-93. Under the mandatory Guideline regime, district courts had authority to sentence outside the Guideline range when they found that "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b) (2000).
90. See William W. Wilkins, Jr. & John R. Steer, The Role of Sentencing Guideline Amendments in Reducing Unwarranted Sentencing Disparity, 50 WASH. & LEE L. REV. 63, 84 n. 107 (1993) ("District court decisions involving departures for a defendant's good works and positive contributions played a prominent role in the issuance of this policy statement.");
91. see also Montgomery, supra note 42, at 38; Jean H. Shuttleworth, Childhood Abuse as a Mitigating Factor in Federal Sentencing: The Ninth Circuit Versus the United States Sentencing Commission, 46 Vand. L. Rev. 1333, 1344 (1993).
92. U.S. SENTENCING GUIDELINES MANUAL § 5H 1.11 (2007).
93. See Amendments to the Sentencing Guidelines for United States Courts, 56 Fed. Reg. 22,762, 22,779-80 (May 16, 1991).
94. Wilkins & Steer, supra note 46, at 84 n.107.
95. Koon v. United States, 518 U.S. 81, 95-96 (1996) (explaining that the Sentencing Commission identified "[d]iscouraged factors," which are "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range," that those factors "should be relied upon only 'in exceptional cases,'" and thus, a sentencing court may rely on a discouraged factor "only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present" (quoting U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. H, introductory cmt.)).
96. See Mary Kreiner Ramirez, Just in Crime: Guiding Economic Crime Reform After the Sarbanes-Oxley Act of 2002, 34 LOY. U. CHI. L.J. 359, 391 (2003) ("[R]esulting sentencing decisions have been disparate; courts have arrived at different and potentially inconsistent conclusions regarding consideration of, for example, the charitable works of defendants, family ties, and employment responsibilities in granting or denying departures.").
97. See, e.g., United States v. Kohlbach, 38 F.3d 832, 838 (6th Cir. 1994) ("[I]t is usual and ordinary, in the prosecution of similar white-collar crimes involving high-ranking corporate executives... to find that a defendant was involved as a leader in community charities, civic organizations, and church efforts.");
98. United States v. Haversat, 22 F.3d 790, 796 (8th Cir. 1994) ("We conclude that Haversat's charitable and volunteer activities, while considerable, do not make him an atypical defendant in antitrust price-fixing cases.").
99. United States v. DeMasi, 40 F.3d 1306, 1324 (1st Cir. 1994) ("A court should survey those cases where the discouraged [good act] factor is present, without limiting its inquiry to cases involving the same offense, and only then ask whether the defendant's record stands out from the crowd.");
100. see also United States v. Nava-Sotelo, 232 F. Supp. 2d 1269, 1286 (D.N.M. 2002), rev'd on other grounds, 354 F.3d 1202 (10th Cir. 2003).
101. But see United States v. Thompson, 190 F. Supp. 2d 138, 144-46 (D. Mass. 2002) (Gertner, J.) (citing United States v. Thompson, 234 F.3d 74, 77-78 (1st Cir. 2000)) (criticizing the First Circuit's holding that "family circumstances must be measured against the population of all federal defendants regardless of offense" as inconsistent with "the express language of the Sentence Reform Act, the Guidelines, and scholarly commentary").
102. United States v. Serafini, 233 F.3d 758, 775 (3d Cir. 2000) ("Here, the District Court was careful to view Mr. Serafini's activities in light of his career and resources, and . . . found that his charitable activities were in fact sufficiently beyond the norm for a wealthy politician, and were sufficiently exceptional so as to warrant a departure under the Guidelines.");
103. see also United States v. Morken, 133 F.3d 628, 630 (8th Cir. 1998);
104. United States v. Mehta, 307 F. Supp. 2d 270, 277 (D. Mass 2004);
105. United States v. Greene, 249 F. Supp. 2d 262, 264 (S.D.N.Y. 2003); cf. Thompson, 190 F. Supp. 2d at 144-46 (addressing this issue in the context of family ties departures).
106. United States v. Ilges, 207 F. App'x 678, 680-81 (7th Cir. 2006) (affirming the district court's refusal to depart downward where the judge "recognized that Ilges was generally an upstanding citizen and noted the evidence in support of his character, but he also weighed these considerations against Ilges's guilt of defrauding the government"); United States v. Thurston, 358 F.3d 51, 81 (1st Cir. 2004) ("[T]he nature of Thurston's offense mitigates against concluding that his good works are 'exceptional.' Health care fraud is a serious crime and the federal interest in combating it is powerful."), cert, granted and judgment vacated, 543 U.S. 1097 (2005) (mem.);
107. United States v. Kuhn, 351 F. Supp. 2d 696, 707 (E.D. Mich. 2005);
108. United States v. Scheiner, 873 F. Supp. 927, 934-35 (E.D. Pa. 1995);
109. see also United States v. Medina, 221 F. App'x 231, 233 (4th Cir. 2007), cert. granted and judgment vacated, 128 S. Ct. 863 (2008) (mem.).
110. In reversing district courts, some circuit courts are quick to say that substantial good works are not "exceptional" without much analysis other than disagreeing with the district court's conclusion. See, e.g., United States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006);
111. United States v. Serrata, 425 F.3d 886, 914 (10th Cir. 2005);
112. United States v. Rybicki, 96 F.3d 754, 759 (4th Cir. 1996). Of course, district courts can be similarly conclusory.
113. See, e.g., United States v. Jordan, 130 F. Supp. 2d 665, 673 (E.D. Pa. 2001).
114. See, e.g., United States v. Lawrence, Nos. 97-4006, 97-4007, 1997 WL 563134, at *2 (4th Cir. Sept. 11, 1997); United States v. Winters, 105 F.3d 200, 208-09 (5th Cir. 1997).
115. See Rachel A. Hill, Character, Choice, and "Aberrant Behavior": Aligning Criminal Sentencing with Concepts of Moral Blame, 65 U. CHI. L. REV. 975, 977 (1998) (observing that "courts have created several distinct categories" of unusual cases that call for a sentencing departure, including aberrant behavior).
116. U.S. SENTENCING GUIDELINES MANUAL § 5K2.20 (2007); see also United States v. Mikutowicz, 365 F.3d 65, 79 (1st Cir. 2004).
117. U.S. SENTENCING GUIDELINES MANUAL § 5K2.20, cmt. n.3. For examples of courts that previously considered a defendant's prior good works in determining whether to grant an aberrant behavior downward departure, see United States v. Benally, 215 F.3d 1068, 1074 (10th Cir. 2000);
118. United States v. Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996);
119. United States v. Takai, 941 F.2d 738, 742-44 (9th Cir. 1991);
120. United States v. Delvalle, 967 F. Supp. 781, 784 (E.D.N.Y. 1997).
121. See also Hill, supra note 58, at 979.
122. Compare U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 70-71 tbls.25, 25A (2006) [hereinafter SOURCEBOOK 2006] (indicating that military record/charitable works/good deeds were cited as the reason for downward departures in fifty-seven cases),
123. U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 282, 285 tbls.25, 25C (2005) (thirty-eight cases), and U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 71 tbl.25 (2004) (sixteen cases) with U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 56 tbl.25A (2003) [hereinafter SOURCEBOOK 2003] (recounting downward departure statistics without mentioning military record/charitable works/good deeds as a reason for departure),
124. U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 52 tbl.25 (2002) (same), and U.S. SENTENCING COMM'N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl.25 (2001) (same).
125. See, e.g., SOURCEBOOK 2006, supra note 61, at 71 tbl.25A n.l (noting that "all reasons cited fewer than twenty eight times" are identified only as "other").
126. 249 F. Supp. 2d 262 (S.D.N.Y. 2003).
127. Id. at 265.
128. See SOURCEBOOK 2003, supra note 61, at 56 tbl.25A.
129. See supra note 8.
130. See, e.g., Greg Farrell & Jayne O'Donnell, Judges Often Deaf to Good Deeds, USA TODAY, July 13, 2005, at lB (discussing such claims in several high-profile criminal prosecutions).
131. See, e.g., United States v. Nowak, No. 05-CR-205, 2007 WL 528194, at *3 (E.D. Wis. Feb. 15, 2007);
132. United States v. Arthur, No. 04-CR-122, 2006 WL 3857491, at *10 (E.D. Wis. Dec. 22, 2006);
133. United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073, at *4 (N.D. Ind. Feb. 3, 2005);
134. United States v. Kuhn, 351 F. Supp. 2d 696, 699 (E.D. Mich. 2005);
135. United States v. Mehta, 307 F. Supp. 2d 270, 280-82 (D. Mass. 2004);
136. United States v. Bruder, 103 F. Supp. 2d 155, 184 (E.D.N.Y. 2000), rev'd on other grounds sub nom. United States v. Schwarz, 283 F.3d 96 (2d Cir. 2002);
137. United States v. Somerstein, 20 F. Supp. 2d 454, 463 (E.D.N.Y. 1998);
138. United States v. Bennett, 9 F. Supp. 2d 513, 525 (E.D. Pa. 1998);
139. see also WHEELER ET AL., supra note 10, at 103-05.
140. E.g., SOURCEBOOK 2006, supra note 61, at 70-71 tbls.25, 25A (reporting that out of 72,585 federal sentencings, only fifty-seven sentences were reduced on the basis of military records, charitable works, and/or good deeds);
141. see also THOMAS W. HUTCHISON ET AL., FEDERAL SENTENCING LAW AND PRACTICE 1628 (2008 ed.); Alan Ellis et al., Baker's Dozen, Part II Advice for the Advocate, 16 CRIM. JUST. 56, 56-57 (2001) (observing that downward departures "for a defendant's charitable and civic good works or public service ... are usually denied");
142. Montgomery, supra note 42, at 39.
143. 543 U.S. 220 (2005).
144. See, e.g., Nowak, 2007 WL 528194, at *3; Arthur, 2006 WL 3857491, at *10; Nellum, 2005 WL 300073, at *5.
145. See, e.g., United States v. Repking, 467 F.3d 1091, 1095-96 (7th Cir. 2006);
146. United States v. Serrata, 425 F.3d 886, 915 (10th Cir. 2005);
147. United States v. Barbera, No. 02-1268, 2005 WL 2709112, at *13 (S.D.N.Y. Oct. 21, 2005);
148. United States v. Strange, 370 F. Supp. 2d 644, 649 n.6 (N.D. Ohio 2005).
149. 127 S. Ct. 2456(2007).
150. Id. at 2461 (stating that a district court may sentence outside the Guideline range if the court finds that "circumstances present an 'atypical case' that falls outside the 'heartland' to which the United States Sentencing Commission intends each individual Guideline to apply," or that "independent of the Guidelines, application of the sentencing factors set forth in 18 U.S.C. § 3553(a) warrants a lower sentence" (citing U.S. SENTENCING GUIDELINES MANUAL § 5K2.0(a)(2) (2007))).
151. Because the petitioner had not raised the arguments below, the Court specifically declined to decide (a) whether "military service should ordinarily lead to a sentence more lenient than the sentence the Guidelines impose," and (b) whether the Guidelines are unreasonable under § 3553(a) where they "expressly decline to consider various personal characteristics of the defendant, such as... military service, under the view that these factors are 'not ordinarily relevant.'" Id. at 2470 (quoting U.S. SENTENCING GUIDELINES MANUAL §§ 5H1.4,5H1.5,5H1.11).
152. Id. at 2474 (Stevens, J., concurring).
153. 128 S. Ct. 558 (2007).
154. Id. at 570 (quoting Brief of the United States at 16, Kimbrough, 128 S. Ct. 558 (No. 06-6330)).
155. Cf. Henning, supra note 6, at 189 ("In the Booker age of reasonableness, at least some of the institutional constraint on sentencing discretion imposed by the Guidelines is gone. Although many judges continue to adhere to the Guidelines, I think it will be only a matter of time before more of them start putting their restored discretion to work.").
156. Black's Dictionary defines aggravation as: "The fact of being increased in gravity or seriousness." BLACK'S LAW DICTIONARY 71 (8th ed. 2004);
157. see also People v. Webber, 228 Cal. App. 3d 1146, 1169 (Ct. App. 1991) ("The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (quoting People v. Harvey, 163 Cal App. 3d 90, 117 (Ct. App. 1984))). Black's Dictionary also defines an aggravating circumstance as either "[a] fact or situation that increases the degree of liability or culpability for a criminal act," or "[a] fact or situation that relates to a criminal offense or defendant and that is considered by the court in imposing punishment (esp. a death sentence)." BLACK'S LAW DICTIONARY, supra, at 259-60.
158. Black's Dictionary defines mitigation of punishment as: "A reduction in punishment due to mitigating circumstances that reduce the criminal's level of culpability, such as the existence of no prior convictions." BLACK'S LAW DICTIONARY, supra note 80, at 1024. It defines mitigating circumstance as either "[a] fact or situation that does not justify or excuse a wrongful act or offense but that reduces the degree of culpability and thus may reduce the damages (in a civil case) or the punishment (in a criminal case)," or "[a] fact or situation that does not bear on the question of a defendant's guilt but that is considered by the court in imposing punishment and esp. in lessening the severity of a sentence."
159. Id. at 260.
160. Lockett v. Ohio, 438 U.S. 586, 604-05 (1978). While this definition is also quite broad, it appears to limit mitigating circumstances to evidence of a "defendant's character, prior record, or the circumstances of his offense." Id. at 605 n.12. As such, the definition potentially excludes some factors that might reduce the defendant's punishment, but are not related to either the defendant or her offense, such as residual doubt regarding the defendant's guilt.
161. See, e.g., Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring) (explaining that '"residual doubt' about guilt is not a mitigating circumstance" because it "is not a fact about the defendant or the circumstances of the crime. It is instead a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" (citation omitted)).
162. See, e.g., Charles Barzun, Rules of Weight, 83 NOTRE DAME L. REV. 1957, 1981-86 (2008) (distinguishing evidentiary "rules of weight" from "admissibility rules").
163. There are, however, a small number of mitigating circumstances that, if present, will constitutionally prohibit the death penalty. See, e.g., Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that the Eighth Amendment prohibits the execution of individuals who were under eighteen years of age at the time of their capital crimes);
164. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment prohibits the execution of mentally-retarded offenders);
165. see also Steiker & Steiker, supra note 41, at 839 ("The presence of a particular mitigating circumstance ... precludes the imposition of the death penalty only in situations of overwhelming societal consensus, the existence of which the Court has been reluctant to find.").
166. E.g., Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt Is Overwhelming; Aggravation Requires Death; and Mitigation is no Excuse, 66 BROOK. L. REV. 1011, 1042 (2001);
167. see also Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 UTAH L. REV. 1, 13-19 (discussing cases in which capital jurors did not understand the meaning of the terms "aggravating" and "mitigating").
168. Bentele & Bowers, supra note 85, at 1016;
169. see also Carissa Byrne Hessick, Motive's Role in Criminal Punishment, 80 S. CAL. L. REV. 89, 132 (2006) (reasoning that "the sentencing process allows for finer distinctions of culpability than determinations of liability," because while "[c]riminal liability is essentially binary," criminal sentences can be adjusted by percentage or a set amount of time);
170. Paul Litton, The "Abuse Excuse" in Capital Sentencing Trials: Is It Relevant to Responsibility, Punishment, or Neither?, 42 AM. CRIM. L. REV. 1027,1032 (2005) (observing that in the capital context "it is quite typical for courts to define mitigating circumstances as 'extenuating' or as making the defendant 'less deserving' of death, while not providing an excuse or justification").
171. See Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
172. Harmelin v. Michigan, 501 U.S. 957, 995 (1991) ("Our cases creating and clarifying the 'individualized capital sentencing doctrine' have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties."). The Court's Eighth Amendment analysis does include a '"narrow proportionality principle' that 'applies to noncapital sentences.'" Ewing v. California, 538 U.S. 11, 20 (2003) (O'Connor, J., plurality opinion) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). Nevertheless, that principle is far from robust. See id. at 31-32 (Scalia, J., concurring in judgment) (criticizing the plurality for failing to acknowledge its retreat from this proportionality principle).
173. Harmelin, 501 U.S. at 994-95.
174. See Ewing, 538 U.S. at 28 (O'Connor, J., plurality opinion) ("[T]he legislature ... has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a 'superlegislature' to second-guess these policy choices."); id. at 25 ("Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.").
175. This observation does not extend to fully discretionary sentencing systems, which are difficult to assess because of a lack of information about which sentencing factors those systems regularly consider.
176. STITH & CABRANES, supra note 16, at 68 ("For each category of crime, the Commission specifies a numerical Base Offense Level.... If a listed 'specific offense characteristic' is present in a particular case, the assigned Base Offense Level must be increased (or, occasionally, decreased) by the number of points specified for that characteristic").
177. See U.S. SENTENCING GUIDELINES MANUAL § 5K2.1 (2007) (death);
178. id. § 5K2.2 (physical injury);
179. id. § 5K2.3 (extreme psychological injury);
180. id. § 5K2.4 (abduction or unlawful restraint);
181. id. § 5K2.5 (property damage or loss);
182. id. § 5K2.6 (weapons and dangerous instrumentalities);
183. id. § 5K2.7 (disruption of governmental function);
184. id. § 5K2.8 (extreme conduct);
185. id. § 5K2.9 (criminal purpose);
186. id. § 5K2.14 (public welfare);
187. id. § 5K2.17 (high-capacity, semi-automatic firearms);
188. id. § 5K2.18 (violent street gangs);
189. id. § 5K2.21 (dismissed and uncharged conduct);
190. id. § 5K2.24 (commission of offense while wearing or displaying unauthorized or counterfeit insignia or uniform).
191. See id. § 5K1.1 (substantial assistance to authorities);
192. id. § 5K2.10 (victim's conduct);
193. id. § 5K2.11 (lesser harms);
194. id. § 5K2.12 (coercion and duress);
195. id. § 5K2.13 (diminished capacity);
196. id. § 5K2.16 (voluntary disclosure of offense);
197. id. § 5K2.20 (aberrant behavior);
198. id. § 5K2.23 (discharged terms of imprisonment).
199. See DEMLEITNER ET AL., supra note 8, at 295 (characterizing such sentencing factors as "'partial' or 'near-miss' defenses");
200. STITH & CABRANES, supra note 16, at 99 ("Some of these Commission-identified grounds for departure are closely analogous to concepts that have long played an important role in determining substantive criminal liability, including mens rea, self-defense, duress, justification, and diminished capacity.").
201. Alaska identifies thirty-three aggravating factors and eighteen mitigating factors. ALASKA STAT. § 12.55.155(c)-(d) (2006). Arizona identifies twenty-three aggravating factors and five mitigating factors; it also includes catchall provisions for both aggravation and mitigation.
202. ARIZ. REV. STAT. ANN. § 13-702(C)-(D) (2001 & Supp. 2007).
203. California identifies seventeen aggravating factors (plus a catchall) and fifteen mitigating factors. CAL. R. CT. 4.421, 4.423.
204. Florida identifies twenty aggravating factors and twelve mitigating factors. FLA. STAT. ANN. § 921.0016(3)-(4) (West 2006).
205. Illinois identifies thirty-six aggravating factors and thirteen mitigating factors. 730 ILL. COMP. STAT. ANN. §§ 5/5-5-3.1 to -3.2 (West 2007).
206. Kansas identifies eight aggravating factors and five mitigating factors. KAN. STAT. ANN. § 21-4716(c)(l)-(2) (2007).
207. Louisiana identifies twenty aggravating factors and eleven mitigating factors; it also includes catchall provisions for both aggravation and mitigation. LA. CODE CRTM. PROC. ANN. art. 894.1(B) (1997 & Supp. 2008).
208. Minnesota identifies twenty-two aggravating factors and six mitigating factors; one of the mitigating factors merely provides for alternative placement for offenders with mental illness. MINN. SENTENCING GUIDELINES II.D(2) (2006).
209. North Carolina identifies twenty-four aggravating factors and twenty mitigating factors; it also includes catchall provisions for both aggravation and mitigation. N.C. GEN. STAT. § 15A-1340.16 (2007).
210. Ohio identifies nine aggravating factors and three mitigating factors (plus a catchall); the statute also identifies five factors suggesting the offender is likely to commit future crimes as well as five factors suggesting the offender is not likely to commit future crimes. OHIO REV. CODE ANN. § 2929.12(B)-(E) (LexisNexis 2002).
211. Tennessee identifies twenty-three aggravating factors and twelve mitigating factors (plus a catchall). TENN. CODE ANN. §§ 40-35-113 to -114 (2007).
212. Washington identifies twenty-six aggravating factors and eight mitigating factors; it also notes that the list of mitigating factors is "not intended to be exclusive." WASH. REV. CODE ANN. § 9.94A.535 (West 2003).
213. Hawaii identifies ten mitigating factors which militate in favor of imposing a term of probation and six aggravating factors which subject an offender to an extended term of imprisonment. HAW. REV. STAT. ANN. §§ 706-621, -662 (LexisNexis 2007).
214. Idaho identifies nine mitigating factors and six aggravating factors. IDAHO CODE ANN. § 19-2521(l)-(2) (2004).
215. North Dakota identifies fourteen mitigating factors and five aggravating factors. N.D. CENT. CODE §§ 12.1-32-04, -09 (1997 & Supp. 2007).
216. Indiana identifies eleven aggravating factors and eleven mitigating factors. IND. CODE ANN. § 35-38-1-7.1 (West 2004 & Supp. 2008). New Jersey identifies thirteen aggravating factors and thirteen mitigating factors. N.J. STAT. ANN.§ 2C:44-1 (West 2005).
217. Michigan, for example, has created a sentencing scheme that is built entirely around the concept of aggravation. MICH. COMP. LAWS ANN. §§ 777.21-.61 (West 2006). In determining sentence ranges, Michigan uses a point system in which the offender accumulates a certain number of points for various aggravating circumstances. For example, an offender who operates a motor vehicle while intoxicated receives twenty points if the body alcohol content is .2 grams or more; fifteen points if it was less than .2 grams but equal or more than .15 grams; ten points if less than .15 grams but equal or more than .08 grams; and zero points if ability was not affected by alcohol.
218. Id. § 777.48.
219. Five additional states - Alabama, Colorado, Mississippi, Nevada, and Utah - have enacted statutes that provide for enhanced penalties under certain circumstances, and they do not appear to have enacted similar provisions that provide for reduced penalties.
220. See ALA. CODE § 13A-5-6 (LexisNexis 2005) (providing for an increased sentence for various sexual offenders);
221. COLO. REV. STAT. § 18-1.3-401(6), (8) (2007) (listing six aggravating sentencing factors, while expressly allowing judges to make findings of aggravating and mitigating factors);
222. MISS. CODE ANN. §§ 99-19-301, -351 (West 2006) (allowing for enhanced sentences for crimes committed because of the actual or perceived race, color, ancestry, ethnicity, religion, national origin, or gender of the victim, or if the victim is either disabled or sixty-five years or older);
223. NEV. REV. STAT. §§ 193.161-.1685 (2007) (listing nine aggravating sentencing factors);
224. UTAH CODE ANN. §§ 76-3-203.1 to -.9 (2003) (same).
225. Rachel E. Barkow & Kathleen M. O'Neill, Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation, 84 TEX. L. REV. 1973, 1977 (2006);
226. see also Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 719 (2005);
227. Adriaan Lanni, Note, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)?, 108 YALE. L.J. 1775, 1779 (1999);
228. cf. Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 242, 267 (2007) (challenging the conventional wisdom that the political process leads to a "one-way ratchet" of overcriminalization, but recognizing that "new punishment policies" reflect "decisions to punish long-standing crimes more harshly"). But cf. id. at 267 n.214 ("Recent years have seen a modest sentencing countertrend: more than half the states have reformed sentences in the direction of leniency .... They did so by various means - often by eliminating mandatory minimums, increasing judicial discretion in sentencing, or replacing incarceration with treatment for some drug offenders.").
229. Barkow & O'Neill, supra note 100, at 1981-82 (suggesting that voters, prosecutors, victims' rights groups, private prison companies, corrections officers unions, rural communities, and the National Rifle Association all support longer sentences);
230. see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 529 (2001) ("[F]or most of criminal law, the effect of private interest groups is small: the most important interest groups are usually other government actors, chiefly police and prosecutors.").
231. Barkow & O'Neill, supra note 100, at 1980-81. The authors explain: Very few groups and individuals care about the sentences for violent, street, and drug crimes. Those who do - for instance, family members of individuals serving long sentences and the criminal defense bar - have little political pull because they lack financial resources and do not speak for a large number of voters. As for the offenders themselves, they often lack the right to vote, lack organization, and, because they typically come from disadvantaged backgrounds, lack funding to engage in education or lobbying campaigns.
232. Id.
233. Id. at 1982-83;
234. see also Luna, supra note 100, at 720. Bill Stuntz has discussed another, institutionally-based reason for the increasing expansion of criminal law and the increasing severity of criminal penalties: In this system of separated powers, each branch is supposed to check the others. That does not happen. Instead, the story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes, and growing marginalization of judges, who alone are likely to opt for narrower liability rules rather than broader ones.... Prosecutors are better off when criminal law is broad than when it is narrow. Legislators are better off when prosecutors are better off. The potential for alliance is strong, and obvious. And given legislative supremacy - meaning legislatures control crime definition - and prosecutorial discretion - meaning prosecutors decide whom to charge, and for what -judges cannot separate these natural allies. Stuntz, supra note 101, at 510. Stuntz notes that these "politics of institutional competition and cooperation, always pushes toward broader liability rules, and toward harsher sentences as well."
235. Id.
236. Stuntz, supra note 101, at 509. Stuntz explains: Voters demand harsh treatment of criminals; politicians respond with tougher sentences (overlapping crimes are one way to make sentences harsher) and more criminal prohibitions. This dynamic has been particularly powerful the past two decades, as both major parties have participated in a kind of bidding war to see who can appropriate the label "tough on crime."
237. Id.
238. Barkow & O'Neill, supra note 100, at 1982 ("It remains true that appearing soft on crime is politically dangerous.").
239. See, e.g., ROSSI & BERK, supra note 13, at 78-81.
240. Lanni, supra note 100, at 1780 (describing this phenomenon as "a worrying disjuncture between the public's general call for harsher penalties, to which politicians respond with increasingly severe sentencing provisions, and the public's more lenient response when confronted with specific cases");
241. see also id. at 1780-82 (describing social science research which reveals that "citizens report a desire for harsher penalties" in the abstract, but "often suggest more lenient penalties than those meted out by judges" when presented with individual cases);
242. The Supreme Court, 2006 Term - Leading Cases, 121 HARV. L. REV. 225,234 & n.64 (2007) ("[E]ven if sentencing statutes accurately reflect the public's view on the proper punishment for a crime in general, they may overstate the punishment it is willing to impose in a particular case.").
243. See ASHWORTH, supra note 6, at 200 ("[T]he existence of some discretion as to [sentencing] rationale leaves room for an element of racial discrimination to creep into sentencing, whether consciously or unconsciously.");
244. Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARV. L. REV. 904, 913 (1962) (reasoning that police discretion in the arrest function has led to the accusation that police "are harder on" black suspects than white suspects); Morris B. Hoffman, Free Market Justice, N.Y. TIMES, Jan. 8, 2007, at A19 (reporting study findings that the "average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers").
245. See, e.g., Hessick, supra note 86, at 111, 117.
246. See, e.g., PIERCE O'DONNELL ET AL., TOWARDS A JUST AND EFFECTIVE SENTENCING SYSTEM 1-14 (1977).
247. See, e.g., Litton, supra note 86, at 1028;
248. James E. Robertson, Closing the Circle: When Prior Imprisonment Ought to Mitigate Capital Murder, 11 KAN. J.L. & PUB. POL'Y 415, 415-16 (2002);
249. Shuttleworth, supra note 46, at 1335;
250. Joseph M. Spivey, III, Partial Responsibility - A Mitigating Factor, 18 WASH. & LEE L. REV. 118, 121 -23 (1961);
251. Jennifer R. Treadway, 'Residual Doubt' in Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 CASE W. RES. L. REV. 215, 217 (1992);
252. John J. Hopkins, Note, Illegal Arrest as Sufficient Provocation to Mitigate a Homicide, 37 Ky. L.J. 318, 318 (1948);
253. Damian W. Sikora, Note, Differing Cultures, Differing Culpabilities?: A Sensible Alternative: Using Cultural Circumstances as a Mitigating Factor in Sentencing, 62 Ohio St. L.J. 1695, 1698-99 (2001).
254. Steiker & Steiker, supra note 41, at 840.
255. Id.
256. Id. at 848-57.
257. Steiker and Steiker sought to identify the "constitutional core" of capital mitigation "to give greater and more defensible content to the Court's requirement of 'individualized' sentencing.... [F]or the individualization requirement to have any force as a constitutional principle, it must rest on a substantive theory that specifies which aspects of the individual are constitutionally relevant."
258. Id. at 839.
259. Steiker and Steiker believe the Supreme Court has already recognized and will eventually confront the need for a more limited definition of relevant mitigating evidence in the factual context, and they offer their theory for that eventuality.
260. Id. at 843-44, 858-59.
261. See Markel, supra note 6, at 1435-36,1438.
262. Id.
263. Id. at 1436,1438.
264. Steiker and Steiker acknowledge that they seek only to locate a constitutional "floor" for mitigation evidence rather than a theory that explains both aggravating and mitigating factors. Steiker & Steiker, supra note 41, at 854, 859.
265. ASHWORTH, supra note 6, at 134.
266. Id. ("It is often right to suppose that the opposite of a mitigating factor will count as aggravating ([e.g.,] impulsive reactions may justify mitigation and premeditation may be aggravating).").
267. See Hessick, supra note 86, at 102-09.
268. See, e.g., United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001).
269. Indeed, states such as Arizona, California, and Washington, which have presumptive mitigated and aggravated sentences, follow this model precisely. See ARIZ. REV. STAT. ANN. §§ 13-604, -702 (2001 & Supp. 2007);
270. CAL. R. CT. 4.420;
271. WASH. REV. CODE ANN. § 9.94A.535 (West 2003);
272. see also Cunningham v. California, 127 S. Ct. 856, 861-62 (2007) (describing the California system);
273. cf. Hessick, supra note 86, at 136-37 (proposing a sentencing system with "sentencing adjustments if a defendant's motive is 'better' or 'worse' than the motive that is ordinarily associated with the defendant's particular offense").
274. For example, the Guidelines provide for various firearm-related enhancements in robbery offenses. U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2) (2007).
275. ASHWORTH, supra note 6, at 134.
276. U.S. SENTENCING GUIDELINES MANUAL § 3C1.1.
277. Id. § 5K1.1.
278. Id. §5K1.2.
279. N.C. GEN. STAT. § 15A-1340.16(e)(12) (2007).
280. State v. Benbow, 308 S.E.2d 647, 653 (N.C. 1983) (quoting In re Rogers, 253 S.E.2d 912, 918 (1976)) (internal quotation marks omitted);
281. see also State v. Blackwelder, 306 S.E.2d 783, 789 (N.C. 1983);
282. 8 STRONG'S N.C. INDEX 4th Criminal Law § 1295 (4th ed. 2007).
283. It may be important to note that some commentators who have supported the practice of punishing recidivists more harshly than first-time offenders have not conformed to this model of aggravated sentences for repeat offenders and ordinary sentences for first-time offenders. Rather, they have argued that a first-time offender should receive mitigation, while the repeat offender should receive no mitigation. E.g., von Hirsch, supra note 6, at 613.
284. Cf. Andrew Ashworth, Deterrence, in PRINCIPLED SENTENCING 53, 54 (Andrew von Hirsch & Andrew Ashworth eds., 1992) ("A sentencing system based on individual deterrence would need to ensure that courts had detailed information on the character, circumstances, and prior record of the offender, and would then require courts to calculate what sentence would be necessary to deter the particular offender.");
285. Andrew von Hirsch, Incapacitation, in PRINCIPLED SENTENCING 101 (Andrew von Hirsch & Andrew Ashworth eds., 1992) ("Certain facts about offenders - principally, their previous criminal records, drug habits, and histories of unemployment - are . . . indicative of increased likelihood of recidivism.").
286. Under a narrower theory of retributivism, it would also be inappropriate to consider a person's prior bad acts. See infra notes 164-169 and accompanying text.
287. Cf. Alan H. Goldman, Toward a New Theory of Punishment, 1 LAW & PHIL. 57, 61 (1982) ("[I]f the purpose of the state were to proportion reward and suffering to moral merit, to be fair it would have to do so over entire lifetimes, and not in reaction to specific criminal acts."). Examples of this change in the perceived desert of an offender can be seen in judicial opinions involving prior good acts.
288. See, e.g., United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073, at *4-5 (N.D. Ind. Feb. 3, 2005). Thus, while a person might argue that a person's prior good acts are not the business of the criminal justice system, the criminal justice system appears, at least on occasion, to disagree. For similar examples from the United Kingdom,
289. see D.A. THOMAS, PRINCIPLES OF SENTENCING: THE SENTENCING POLICY OF THE COURT OF APPEAL CRIMINAL DIVISION 200 (2d ed. 1979).
290. See infra text accompanying notes 241-252.
291. A social contract theory, for example, might suggest that both good acts and bad acts are appropriately considered at sentencing. We would punish a habitual offender more for her repeated violations of the social contract. See Goldman, supra note 135, at 74 ("While we cannot use criminals in any way we wish in order to deter other potential criminals, we can perhaps demand that they not repeat their crimes."). A person who has performed acts that accrue to the benefit of society (e.g., military or other public service) would receive less punishment.
292. See, e.g., United States v. Henley, No. 94-50138, 1995 WL 136116, at *2 (5th Cir. Mar. 7, 1995) ("Such an extended, exemplary military record reflects a positive contribution to society."); United States v. Pipich, 688 F. Supp. 191, 193 (D. Md. 1988) ("[A] person's military record... reflects the nature and extent of that person's performance of one of the highest duties of citizenship.").
293. See discussion infra Part III.B.
294. See, e.g., 18 U.S.C. § 3553(a)(2) (2000) (stating multiple purposes of punishment);
295. MONT. CODE ANN. § 46-18-101 (2007) (same);
296. N.Y. PENAL LAW § 1.05 (McKinney 2004) (same);
297. TENN. CODE ANN. § 40-35-102 (2007) (same);
298. ABA STANDARDS FOR CRIMINAL JUSTICE SENTENCING § 18-2.1 (3d ed. 1994) (same);
299. MODEL PENAL CODE § 1.02 (1985) (same). But see, e.g., CAL. PENAL CODE § 1170 (West 2004) (listing "punishment" as the single "purpose of imprisonment for crime").
300. While deterrence distinguishes between good and bad acts, it does so for reasons that seem untenable in our present systems of sentencing. See infra text accompanying notes 217-225.
301. See Durham, supra note 11, at 618; Benjamin B. Sendor, The Relevance of Conduct and Character to Guilt and Punishment, 10 NOTRE DAME J.L. ETHICS & PUB. POL' Y 99. 129 (1996).
302. See James Q. Wilson, Selective Incapacitation, in PRINCIPLED SENTENCING 146, 156 (Andrew von Hirsch & Andrew Ashworth eds., 1992); Note, Selective Incapacitation, supra note 11, at 512.
303. MEASURING RECIDIVISM, supra note 16, at 15;
304. see also ALLEN J. BECK & BERNARD E. SHIPLEY, U.S. DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1983, at 7 (1989) [hereinafter Recidivism 1983], available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ rpr83.pdf; Martin Wasik, Desert and the Role of Previous Convictions, in PRINCIPLED SENTENCING 233, 235 (Andrew von Hirsch & Andrew Ashworth eds., 1992) ("The research evidence is that the more convictions recorded against a defendant, the greater the likelihood that he will be reconvicted.").
305. But see Bernard E. Harcourt, Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age 20-25 (Chicago Pub. Law & Legal Theory, Working Paper No. 94, 2005), available at http://ssrn.com/abstract=756945 (arguing that, even assuming rational actors, a known rate of offending for high-risk recidivists, and the number of high-risk recidivists, under certain circumstances overall crime rates will actually increase in a system of selective incapacitation).
306. Nonetheless, there may be reason to believe that such activities might be correlated with decreased levels of recidivism because individuals who engage in those activities may experience higher levels of socialization skills and self-esteem, which some research suggests are correlated with lower recidivism rates. Wendy G. Turner, The Experiences of Offenders in a Prison Canine Program, 71 FED. PROBATION 38, 42 (2007); see also Heather Rowlison, "Sin No More ": Recidivism and Non-Traditional Punishments in Wyoming, 58 BAYLOR L. REV. 289,314-15 (2006).
307. For example, the 2000 Bureau of Justice Statistics study - which is the best source of veteran recidivism rates - was based on "personal interviews conducted through the 1997 Survey of Inmates in State and Federal Correctional Facilities and the 1996 Survey of Inmates in Local Jails." The study authors noted that the accuracy of the report may suffer from sampling errors (the study used a sample rather than "a complete enumeration of the population"), as well as nonsampling errors (e.g., the study relied on inmates to provide their own personal information which resulted in non-responses, different interpretations of the questions, and recall difficulties). CHRISTOPHER J. MUMOLA, U.S. DEP'T OF JUSTICE, VETERANS IN PRISON OR JAIL 14 (2000) [hereinafter VETERANS IN PRISON], available at http://www.ojp.usdoj.gov/bjs/pub/pdf/vpj.pdf; cf. Archer & Gartner, supra note 19, at 956 ("Direct evidence of whether veterans are overrepresented in the commission of homicide is difficult to obtain.....").
308. Brief for National Veterans Legal Services Program & Veterans for America as Amici Curiae Supporting Petitioner at 8 n.5, Rita v. United States, 127 S. Ct. 2456 (2007) (No. 06-5754) [hereinafter Brief for National Veterans]. But see Archer & Gartner, supra note 19, at 943 (discussing the historical recurrence of the "violent veteran model," i.e., the presumption that "the experience of war may have resocialized soldiers to be more accepting of violence and more proficient at it").
309. See Brief for National Veterans, supra note 147, at 8 n.5 (citing STATE OF N.Y. DEP'T OF CORR. SERVS., VETERANS' PROGRAM FOLLOW-UP JULY 1993 (1993), abstract available at http://www.ncjrs.gov/app/publications/ Abstract.aspx?id=149419).
310. As the report explains, the rates differ for veteran and non-veteran state prisoners, but the rates are comparable for federal prisoners and local jail inmates. VETERANS IN PRISON, supra note 146, at 7; accord U.S. SENTENCING COMM'N, RECIDIVISM AND THE FIRST OFFENDER 23 exhibit 3 (2004) [hereinafter FIRST OFFENDER], available at http://www.ussc.gov/ publicat/Recidivism-FirstOffender.pdf (indicating that offenders with prior military service make up a higher proportion of federal offenders with little or no prior criminal history than of federal offenders with lengthier criminal records).
311. MEASURING RECIDIVISM, supra note 16, at 11 (reporting the results of a study which found that women recidivate at a lower rate than men, with a rate of 24.3% for men and 13.7% for women);
312. see also PATRICK A. LANGAN & DAVID J. LEVIN, U.S. DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 7 (2002) [hereinafter RECIDIVISM 1994], available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/rpr94.pdf; RECIDIVISM 1983,
313. supra note 143, at 5.
314. But see MILES D. HARER, FEDERAL BUREAU OF PRISONS, RECIDIVISM AMONG FEDERAL PRISONERS RELEASED IN 1987, at 3 (1994) [hereinafter RECIDIVISM 1987], available at http://www.bop.gov/ news/research-projects/published-reports/recidivism/oreprrecid87.pdf ("Recidivism rates were almost the same for males and females; 40.9 percent of the males recidivated compared to 39.7 percent of the females.").
315. MEASURING RECIDIVISM, supra note 16, at 12 ("Recidivism rates decline relatively consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates. . . Among all offenders under age 21, the recidivism rate is 35.5 percent, while offenders over age 50 have a recidivism rate of 9.5 percent.");
316. see also RECIDIVISM 1983, supra note 143, at 5; RECIDIVISM 1987, supra note 150, at 3;
317. RECIDIVISM 1994, supra note 150, at 7.
318. MEASURING RECIDIVISM, supra note 16, at 12 ("[T]he race of the offender is associated with recidivism rates. Overall, Black offenders are more likely to recidivate (32.8%) than are Hispanic offenders (24.3%). White offenders are the least likely to recidivate (16.0%).");
319. see also RECIDIVISM 1983, supra note 143, at 5;
320. RECIDIVISM 1987, supra note 150, at 2;
321. RECIDIVISM 1994, supra note 150, at 7.
322. MEASURING RECIDIVISM, supra note 16, at 12 ("[T]hose with stable employment in the year prior to their instant offense are less likely to recidivate (19.6%) than are those who are unemployed (32.4%).");
323. see also RECIDIVISM 1987, supra note 150, at 3.
324. MEASURING RECIDIVISM, supra note 16, at 12 ("Overall, offenders with less than a high school education are most likely to recidivate (31.4%), followed by offenders with a high school education (19.3%), offenders with some college education (18.0%), and offenders with college degrees (8.8%).");
325. see also RECIDIVISM 1983, supra note 143, at 5;
326. RECIDIVISM 1987, supra note 150, at 3.
327. MEASURING RECIDIVISM, supra note 16, at 12 ("Offenders who have never been married are most likely to recidivate (32.3%).... Those who are married are slightly less likely to recidivate (13.8%) than are those who are divorced (19.5%).");
328. see also RECIDIVISM 1987, supra note 150, at 5-6.
329. See U.S. SENTENCING GUIDELINES MANUAL § 5H1.2 (2007) (discouraging consideration of "education and vocational skills");
330. id. § 5H1.5 (discouraging consideration of employment record);
331. id. § 5H1.6 (discouraging consideration of "family ties and responsibilities").
332. RECIDIVISM 1983, supra note 143, at 11 ("[A]ge when released is found to have the largest impact [on rearrest odds], followed by the number of prior arrests.").
333. U.S. SENTENCING GUIDELINES MANUAL § 5H1.1.
334. See Peter B. Hoffman & James L. Beck, The Origin of the Federal Criminal History Score, 9 FED. SENT'G. REP. 192, 193 (1997)
335. (citing U.S. SENTENCING COMM'N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 42 (1987), available at http://www.fd.org/pdf-lib/Supplementary%20Report.pdf) (reporting that both age and drug abuse have "demonstrated power in predicting recidivism," but "the Sentencing Commission determined that it would only include factors that could be supported by both a just desert and predictive rationale .... As a result, the Sentencing Commission did not include age and drug abuse ... since they were found not to conform to a just desert rationale.").
336. U.S. SENTENCING GUIDELINES MANUAL ch. 4, pt. A, introductory cmt.
337. Id.
338. Those who have articulated a desert-based rationale for increasing sentences for prior bad acts have generally confined their arguments to prior convictions, as opposed to prior uncharged conduct. E.g., von Hirsch, supra note 6, at 612 ("Unproven prior conduct should not be considered in the current sentencing decision."). Nevertheless, the Guidelines increase sentences both for prior convictions and for prior uncharged or acquitted conduct. U.S. SENTENCING GUIDELINES MANUAL ch. 4;
339. id. § IB 1.3(a). The Guidelines claim to base these decisions, at least in part, on retributive principles.
340. Id. ch. 1, pt. A.
341. As the Supreme Court has stated the issue: "[T]he repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted." Graham v. West Virginia, 224 U.S. 616, 623 (1912);
342. see also U.S. SENTENCING GUIDELINES MANUAL ch. 4, pt. A, introductory cmt. ("A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment."); James A. Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, 32 MCGEORGE L. REV. 1,13 (2000).
343. See Durham, supra note 11, at 620 (observing that enhancing penalties for recidivists "poses a potential predicament for the justice model").
344. Proportionality is a main concern of desert theory, which is a "modern form of retributive philosophy." ASHWORTH, supra note 6, at 72-73.
345. Id. at 127. Ashworth elaborates: [T]he assessment of culpability has various dimensions. At the level of legal liability it usually turns on intention, recklessness and a limited group of excusing defences. Where the offender's case has elements of an excusing condition but falls outside the narrow legal definition for a defence, this should be a good ground for reduced culpability.
346. Id.
347. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 461 (1978) ("It is... common ground that a greater degree of wrongdoing justifies greater punishment.");
348. Andrew Ashworth, Desert, in PRINCIPLED SENTENCING 181, 182 (Andrew von Hirsch & Andrew Ashworth eds., 1992) ("Crimes must be ranked according to their relative seriousness, as determined by the harm done or risked by the offense and by the culpability of the offender.").
349. E.g., FLETCHER, supra note 167, at 460-66;
350. RICHARD G. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT 67-74 (1979).
351. See, e.g., SINGER, supra note 168, at 70;
352. Durham, supra note 11, at 620;
353. Ekow N. Yankah, Good Guys and Bad Guys: Punishing Character, Equality and the Irrelevance of Moral Character to Criminal Punishment, 25 CARDOZO L. REV. 1019, 1026-37 (2004);
354. see also FLETCHER, supra note 167, at 510 (framing the issue of culpability solely in terms of choice theory: "[C]ould the actor have been fairly expected to avoid the act of wrongdoing? ... This is the critical question that renders the assessment of liability just.").
355. See Kirchmeier, supra note 41, at 664 ("[Good Character Factors] are mitigating ... because they show that the defendant is not completely evil... [and] consideration of these factors recognizes, for retributive purposes, that a defendant consists of something more than the murder that took place on one day of the defendant's life.");
356. Steiker & Steiker, supra note 41, at 847 ("Evidence of... past good works may reveal a defendant's 'general desert' and contribute to a moral assessment of the defendant's entire life that includes, but is not limited to, the defendant's culpability for the crime.").
357. ASHWORTH, supra note 6, at 151;
358. see also WALKER, supra note 10, at 50. Indeed, this "social accounting" or "balance sheet" description of good acts at sentencing is not without parallel in federal sentencing decisions. For examples of courts that weigh the defendant's good acts against the harm of his offense,
359. see supra note 55.
360. See also Sendor, supra note 141, at 130-31 (endorsing a view of sentencing that permits a sentencer to weigh the harm of an offense against the offender's prior good deeds).
361. ASHWORTH, supra note 6, at 151; accord von Hirsch, supra note 6, at 595. Dan Markel takes a similar position, suggesting that a system of punishment may not function in a manner similar to a "debtor-creditor relationship, a relation in which sovereign prerogative permits the 'creditor' to waive responsibility for collecting the debt in certain ex post situations." Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157, 2214 (2001). The reasons against such a debtor-creditor model of sentencing - as Markel frames them - are (a) there is an obligation to avoid criminal debts (i.e., crime); (b) unlike monetary debts, the "debt" owed for a rape or other violent assault cannot really be calculated; and (c) that although the "debtor" in the analogy is the state, the interests of the victim and the public must be considered as well, and while the state may have gained some benefit from an offender's good acts, the victim has not.
362. See id. at 2214 n.255. Whatever the normative merit of Markel's arguments may be, there are certainly other situations in American criminal justice systems - such as sentencing reductions for cooperation with law enforcement - where "discounts" for certain ex post behavior are calculated and where a benefit to the state is rewarded even where the victim has gained no benefit.
363. ASHWORTH, supra note 6, at 151 ("Is it truly a court's function to concern itself with these matters? The court is passing sentence for one distinct incident...."). Many retributivists may reject the consideration of offender characteristics at sentencing.
364. See von Hirsch, supra note 6, at 608. They do so because such considerations are ordinarily associated with a rehabilitative punishment system.
365. See Williams v. New York, 337 U.S. 241, 247-48 (1949) (indicating that reformation and rehabilitation are important goals of criminal jurisprudence and should involve individualized sentences which consider an offender's history); Note, Admissibility of Character Evidence, supra note 2, at 717 (suggesting that if the purpose of confinement is rehabilitation, then it is necessary to consider character evidence).
366. However, Ashworth does state that "sentencers would not know where to stop if they purported to draw up a balance sheet of the offender's social contributions." ASHWORTH, supra note 6, at 158. That concern is addressed below.
367. See infra Part III.D.
368. Distinctions are sometimes drawn between the consideration of offense characteristics and offender characteristics at sentencing. E.g., Cunningham v. California, 127 S. Ct. 856, 872-73 (2007) (Kennedy, J., dissenting);
369. WHEELER ET AL., supra note 10, at 122;
370. Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37, 56-57 (2006). But see Cunningham, 127 S. Ct. at 869 n.14 (rejecting the distinction for Sixth Amendment purposes).
371. Von Hirsch, supra note 6, at 609-10.
372. See id. at 608, 610-11.
373. Id. at 608.
374. See, e.g., United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990) ("[T]he party seeking an adjustment in the sentence level must establish the factual predicate justifying the adjustment.").
375. Von Hirsch, supra note 6, at 609-10;
376. see also Wasik, supra note 143, at 239 (commenting that "von Hirsch's use of the words 'typical' and 'characteristic' to describe the assessment to be made of the defendant's record in light of the current offense" does not mean to indicate that "an assessment being made of the overall moral standing of the person").
377. See Durham, supra note 11, at 621 ("[T]he extent to which a behavior is characteristic is important because it conveys something about the moral nature of the individual and ultimately the blameworthiness of the offender. Thus, to know that criminal activity is characteristic is to know something about the offender's moral character.");
378. see also SINGER, supra note 168, at 70 n.9 ("Von Hirsch says that he really means to ask whether the defendant's crime was 'in character' rather than whether his character is good or bad. I find the difference not persuasive.").
379. Von Hirsch, supra note 6, at 604 (emphasis added);
380. see also id. at 597.
381. See Yankah, supra note 169, at 1021 n.l ("The image of bad guys also creates a distinction between criminals and other members of society. Many see criminals as possessing the sum of all moral faults we condemn.").
382. Von Hirsch, supra note 6, at 597;
383. see also id. at 593 ("[I]t is difficult to escape the feeling that, for whatever reason, first offenders do deserve less punishment.").
384. Von Hirsch explains that "[t]he strength of this feeling alone justifies a closer look at the issue of desert and prior criminality." Id. at 593. Indeed, the value of shared intuitions of justice - or, as it is sometimes called "empirical desert" - has gained increasing recognition in recent years.
385. See, e.g., Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1830 (2007) ("[R]ecent writings ... have urged that there might be good reason to rely upon a more empirical notion of justice: one reflected in the shared intuitions of justice of the community to be governed by the criminal justice system whose rules and practices are being formulated.").
386. United States v. Takai, 941 F.2d 738, 744 (9th Cir. 1991).
387. See Posting of logicnazi to The Volokh Conspiracy, http://volokh.com/posts/1161895859.shtml (Oct. 26, 2006, 7:24) ("In an all volunteer military people aren't joining the military because they are making a noble sacrifice but because we have set the pay level high enough and the benefits good enough to attract soldiers.").
388. United States v. Nava-Sotelo, 232 F. Supp. 2d 1269, 1285-87 (D.N.M. 2002), rev'd on other grounds, 354 F.3d 1202 (10th Cir. 2003);
389. see also United States v. Thurston, 358 F.3d 51, 80 (1st Cir. 2004) ("[Bjusiness leaders are often expected, by virtue of their positions, to engage in civic and charitable activities." (citation omitted)), cert. granted and judgment vacated, 543 U.S. 1097 (2005) (mem.); Henning, supra note 6, at 190.
390. This is not to say an offender who committed a previous crime for an unusually sympathetic motive will never receive leniency. Several systems have established mechanisms through which both judges and prosecutors can reduce the aggravating effect of such convictions.
391. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 4A1.3(b) (2007) (permitting downward departures where "the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history");
392. Ewing v. California 538 U.S. 11, 17 (2003) (describing discretion afforded to prosecutors and judges under California's Three Strikes Law, which allows them to reduce charges "to avoid imposing a three strikes sentence"). Under these systems, while an offender's sympathetic motives in committing a prior crime may result in leniency under habitual offender provisions, such leniency does not appear to be required.
393. U.S. SENTENCING GUIDELINES MANUAL § 5K1.1.
394. Id. § 3E1.1.
395. This is not to say motive is irrelevant to criminal punishment. To the contrary, it often plays an important role in determinations of liability and sentencing.
396. See Hessick,supra note 86, at 93-109. I raise these examples simply to show the criminal justice system already rewards defendants with sentence reductions when those defendants are doubtlessly pursuing their own agendas.
397. Reductions for charitable work and military service more resemble reductions for guilty pleas and substantial assistance, which likely benefit society as a whole, than reductions for family responsibilities, which likely only benefit the offender's family. See supra note 172. One might argue, as Dan Markel has, that cooperation and guilty pleas are relevant to punishment decisions (and prior good works are not) because they bear directly on the social costs of the offender's conduct.
398. Markel, supra note 6, at 1455 n.104. This argument is persuasive with respect to guilty pleas, but less so with respect to cooperation. If we view the social costs of an offender's crime as including both the harm to her victim (or society as a whole) as well as the costs associated with investigating and prosecuting the offender's crime, then an offender's decision to plead guilty spares the state the costs of prosecution and reduces the overall costs of her crime. But providing substantial assistance to authorities does not reduce the costs of an offender's crime; rather, it reduces the costs associated with investigating and prosecuting the crimes of other individuals.
399. See U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 (limiting the availability of sentence reductions to defendants who have "provided substantial assistance in the investigation or prosecution of another person who has committed an offense" (emphasis added)). Once we start to look at the costs of prosecuting other individuals, the punishment calculus begins to resemble the social accounting analysis that is discussed above.
400. See supra note 172.
401. Brief for National Veterans, supra note 147, at 10;
402. see also MONT. CONST art. II, § 35 ("The people declare that Montana servicemen, servicewomen, and veterans may be given special considerations determined by the legislature.").
403. See 5 U.S.C. §§ 2108, 3309 (2000); 38 U.S.C. § 4214 (2000).
404. See 38 U.S.C. §§ 3001-3036.
405. See 8 U.S.C. §§ 1439-1440 (2000).
406. MISS. CODE ANN. § 99-19-37 (West 2006) (restoring the right of suffrage to persons who lost such right by reason of criminal conviction, but who thereafter honorably served in the military during World War I or World War II).
407. See 38 U.S.C. §§ 1701-1774.
408. See id. §§ 3701-3775.
409. See id. §§3117(b), 3701-3775; 15 U.S.C. § 633(b)(1) (2000).
410. Janet Eriv, Persistent Misconceptions: A Response to Robert Hammel, 23 FORDHAM URB. L.J. 1219,1231 (1996).
411. See, e.g., President George W. Bush, President Commemorates Veterans Day, Discusses War on Terror (Nov. 11, 2005), available at http://www.whitehouse.gov/news/releases/2005/ll/20051111-l.html;
412. Senator James Webb, Remarks of James Webb at the Confederate Memorial (June 3, 1990), available at http://www.jameswebb.com/speeches/6-3-90- confedmemorial.htm.
413. See, e.g., Brian Burnes, A Lasting Legacy: More Than 30 Years After Kennedy Established It, Peace Corps Still Performing Valuable Service, DALLAS MORNING NEWS, Nov. 28, 1993, at 40A;
414. Wayne Washington, Bush Tour Touts Volunteerism in N.C. Stop, Touts His Freedom Corps, BOSTON GLOBE, Jan. 31,2002, at A2.
415. See Peace Corps Act, 22 U.S.C. §§ 2501-2523 (2000); National and Community Service Act of 1990, 42 U.S.C. §§ 12571-12595 (2000) (creating AmeriCorps); Domestic Volunteer Service Act of 1973, 42 U.S.C. §§ 4950-5091 (2000);
416. see also 10 U.S.C. § 510 (2006) (creating an incentive program for military and other national service).
417. See 20 U.S.C. § 1087ee(2)(D)-(E) (2000) (canceling loans for qualifying members of the armed services serving in "an area of hostilities" and for volunteers under the Peace Corps Act or the Domestic Volunteer Service Act of 1973).
418. See I.R.C. § 170(2000).
419. MICHAEL D. MALTZ, RECIDIVISM 11 (1984) ("Specific (or individual) deterrence is the reduction in criminal activity by specific offenders, as a direct consequence of their fear of incarceration or some other sanction.").
420. Sendor, supra note 141, at 127.
421. See Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines, 40 AM. CRIM. L. REV. 19, 61-62 (2003) (describing one study of white-collar offenders which showed no difference in the recidivism rates between similar offenders who received prison terms and those who received probation, and commenting that "if a deterrent effect could not be found with this group of offenders, who are generally considered the most rational and calculating, finding such an effect for other types of crime is unlikely");
422. Neal Kumar Katyal, Deterrence's Difficulty, 95 MICH. L. REV. 2385, 2387-88 (1997) (examining the failure of traditional deterrence analysis to account for substitution effects);
423. see also STITH & CABRANES, supra note 16, at 54 ("[N]either existing social science research nor the [U.S. Sentencing] Commission's own research efforts ... provide[] an empirical basis for the elaboration of provably 'efficient' sentencing rules.").
424. Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L.J. 949, 954 (2003). Robinson and Darley point to studies suggesting that, as a prison term continues, its incremental effect is felt less by the offender over time while its cost to the state remains constant.
425. Id. at 954-55, 994-95. They also note other difficulties with the deterrence rationale, including a lack of knowledge of specific rules by potential offenders, as well as the disproportionately high occurrence of conditions that interfere with rational decisionmaking (e.g., drug use and poor impulse control) in populations most at risk for criminal conduct.
426. Id. at 954-56.
427. For example, the U.S. Sentencing Commission report of recidivism rates demonstrated that an offender's criminal history was correlated with likelihood of future offenses.
428. MEASURING RECIDIVISM, supra note 16, at 6-8. As discussed above, the Federal Sentencing Guidelines impose significant additional penalties on repeat offenders - which, according to the increased specific deterrence theory, should reduce their future criminality - yet various reports and scholarship demonstrated that these offenders continue to reoffend at high levels. See supra notes 15-16, 143 and accompanying text.
429. Cf. Franklin E. Zimring & Sam Kamin, Facts, Fallacies, and California's Three Strikes, 40 DUQ. L. REV. 605, 606 (2002).
430. Ewing v. California, 538 U.S. 11,15-16 (2003) (O'Connor, J., plurality opinion).
431. See, e.g., Naomi Harlin Goodno, Career Criminals Targeted: The Verdict Is In, California's Three Strikes Law Proves Effective, 37 GOLDEN GATE U. L. REV. 461, 469-71 (2007).
432. One study of the legislation found that "the share of arrests attributable to the second strike group did not change" after the adoption of the legislation and that "those eligible for the most serious sentences, the third strike group, declined from only 3.3% of all arrests to 2.7% of all arrests." Zimring & Kamin, supra note 213, at 606 (citing ZIMRING ET AL., CRIME AND PUNISHMENT IN CALIFORNIA: THE IMPACT OF THREE STRIKES AND YOU'RE OUT (1999)).
433. This potential distinction draws on ideas articulated in Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).
434. See United States v. Medina, 221 F. App'x 231, 234 (4th Cir. 2007), cert, granted and judgment vacated, 128 S. Ct. 863 (2008) (mem.); United States v. Scheiner, 873 F. Supp. 927, 934(E.D.Pa. 1995).
435. This statement assumes we are confident that the ordinary (non-aggravated) sentence length will sufficiently deter most actors.
436. Cf. Dan-Cohen, supra note 217, at 630-35 (exploring this idea in the context of duress).
437. See STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF THE LAW 500 (2004).
438. See, e.g., Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises on Which They Rest, 17 HOFSTRA L. REV. 1, 17 (1988) ("The empirical work with respect to deterrence, however, could not provide the Commission with the specific information necessary to draft detailed sentences with respect to most forms of criminal behavior." (citing Henry Braun, Statistical Estimation of the Probability of Detection of Certain Crimes (July 14, 1988) (draft paper prepared for U.S. Sentencing Commission, on file with Hofstra Law Review))).
439. See, e.g., SHAVELL, supra note 221, at 483 (proposing that "sanctions should be scaled upward to reflect the likelihood of escaping liability," but recognizing "the notion that the magnitude of sanctions should be proportional to the gravity of a bad act is a widely held notion of fairness, and this notion does not accord weight to the likelihood of escape from sanctions.");
440. id. at 539 ("From the deterrence perspective, for example, we may want to impose a ten-year prison sentence on a car thief because the odds of finding him are quite low, but the demand for retribution against him may well limit the sentence to a lesser level.");
441. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 STAN. L. REV. 703, 748 (2005) (making a deterrence-based argument for capital punishment, but conceding that there may be "constraints of proportionality" that would prevent their argument from applying to unintentional killings).
442. Robinson & Darley, supra note 211, at 985-89 (contending that sentences that exceed a community's shared sense of justice have the potential to cause additional crime due to perceptions of injustice);
443. see also Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U. Chi. L. Rev. 607, 644-45 (2000) (describing the reluctance of agents of the criminal justice system to discharge their duties when it would overturn a prevalent social norm).
444. See Hessick, supra note 86, at 117-18; Leslie Sebba, Mitigation of Sentence in Order to Deter?, 6 MONASH U. L. REV. 268, 293 (1980).
445. See Posting of nn489 to Volokh Conspiracy, http://volokh.com/ posts/1161895859.shtml (Oct. 26, 2006, 7:59) ("'[G]ood deeds' [may] start to look like the more corrupt kind of medieval indulgences, allowing people to reduce their punishment for crimes they haven't even committed yet.").
446. For concerns about whether an individual's motives in performing good acts should matter, see supra notes 187-193 and accompanying text.
447. See authorities cited supra note 55.
448. See Robert M. Carter et al., Community Service: A Review of the Basic Issues, 51 FED. PROBATION 4, 4 (1987);
449. see also N.H. REV. STAT. ANN. § 651:36-a (2007) (authorizing the superintendents of county correctional facilities to have prisoners perform "uncompensated public service at municipality-owned grounds or property"); VA. CODE ANN. § 19.2-305.1(A) (2008) (requiring the performance of community service or restitution prior to probation and/or sentence suspension following a conviction for a crime which resulted in property loss or damage).
450. See Carter et al., supra note 229, at 4.
451. But see Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 625-30 (1996) (arguing that community service as punishment creates a form of dissonance because we ordinarily admire persons who engage in such activities, and thus it is difficult for members of society to believe that law genuinely means to condemn persons when it orders them to perform such services as criminal punishments).
452. See STEVE DILELLA, CONN. GEN. ASSEMBLY, FIRST-TIME NONVIOLENT OFFENDERS RECEIVING MILITARY SERVICE INSTEAD OF PRISON TIME 1 (2005), http://www.cga.ct.gov/2005/rpt/2005-R-0200.htm (reporting that there appear to be no state laws which "allow judges to sentence first-time nonviolent offenders to military service instead of imprisonment," but that the practice may have occurred "during the World War II and Vietnam eras");
453. see also supra note 198; cf. David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. Rev. 211, 258-59 (2004) (proposing such a program for federal drug offenders).
454. THE DIRTY DOZEN (MGM 1967). In the movie, the U.S. Army assigns a maverick officer to train a dozen GI convicts to undertake a near-suicidal mission. The convicts are told that if they succeed in this mission, they will receive pardons for their crimes.
455. See Kevin Thomas, 'Dirty Dozen' at Paramount, L.A. TIMES, June 28, 1967, at E9.
456. HUGH F. RANKIN, CRIMINAL TRIAL PROCEEDINGS IN THE GENERAL COURT OF COLONIAL VIRGINIA 110,171 (1965).
457. See Abbott, supra note 19, at 42.
458. Current regulations for several of the armed forces indicate that they do not accept recruits as an alternative to criminal prosecution, but anecdotal evidence suggests that the practice continues. Compare Rod Powers, Join the Military or Go to Jail?, ABOUT.COM, http://usmilitary.about.com/od/joiningthemilitary/a/joinprison.htm (last visited Oct. 16, 2008) (quoting relevant regulations),
459. andJeff Schogol, Judge Said Army or Jail, But Military Doesn't Want Him, STARS & STRIPES, Feb. 3, 2006, http://stripes.com/article.asp?section=104&article=33904&archive=true, with DILELLA, supra note 231, at 1, Man With Pot Given Choice: Jail or Military, KRON.COM, Nov. 14, 2004, http://www.kron.com/Global/story.asp?S=2579902 (recounting a California judge's decision to allow a convicted offender the choice between enlistment and jail as punishment for marijuana possession).
460. See 18 U.S.C. § 3585(b) (2000) ("A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... that has not been credited against another sentence.").
461. See Henning, supra note 6, at 190 ("Anything can be a 'good work,' so it is impossible to define that term as a shortcut to figuring out what counts, much less how it should be counted.").
462. See supra notes 194-207 and accompanying text;
463. see also Kahan, supra note 230, at 629.
464. See supra text accompanying notes 119-131.
465. See supra text accompanying notes 123-124. Admittedly, sentencing systems have sometimes struggled with the question of which offenders are appropriately compared for purposes of sentencing adjustments.
466. See supra notes 52-54 and accompanying text.
467. See supra note 15.
468. See supra note 15.
469. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e) (2007).
470. See, e.g., id. § 4A1.2(c);
471. United States v. Williams, 462 F. Supp. 2d 342, 343-44 (E.D.N.Y. 2006).
472. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.2, cmt. nn.6 & 10.
473. See, e.g., Custis v. United States, 511 U.S. 485, 485 (1994); People v. Nguyen, 62 Cal. Rptr. 3d 255, 281 (Ct. App. 2007), review granted, depublished by 169 P.3d 882 (Cal. 2007).
474. See, e.g., United States v. Akers, 409 F.3d 904, 905-06 (8th Cir. 2005) (per curiam);
475. United States v. Cox, 245 F.3d 126,130-32 (2d Cir. 2001).
476. See authorities cited supra note 131;
477. see also State v. Kayer, 984 P.2d 31, 47 (Ariz. 1999) (discussing the length of military service needed for that service to qualify as a mitigating factor during sentencing).
478. See, e.g., United States v. Canova, 412 F.3d 331, 359 (2d Cir. 2005);
479. United States v. Jared, 50 F. App'x 259, 261 (6th Cir. 2002);
480. United States v. Given, 164 F.3d 389, 395 (7th Cir. 1999).
481. Allen v. State, 453 N.E.2d 1011,1013 (Ind. 1983).
482. For a brief discussion about administrability issues, see infra text accompanying notes 277-278.
483. Of course, political systems currently have the ability to submit the identification of good acts to the political process. Indeed, as discussed above, the state of North Carolina appears to have done precisely this and concluded that an honorable discharge from the military is the appropriate line to draw regarding good act mitigation. See supra notes 23-25 and accompanying text. That other political systems have not chosen to draw such lines should not be interpreted as a general consensus that good acts ought not mitigate punishment. As discussed in Part II.A, the political process seems to be much more adept at identifying aggravating than mitigating circumstances. To the extent a system has failed to identify good acts as a potential category of mitigation, we cannot plausibly say a consensus has been reached to exclude specific types of good acts as worthy of mitigation.
484. This objection may not apply to so-called "victimless crimes."
485. California's Three Strikes Law and various sex offender registry laws can be traced to efforts by victim families who were outraged that their children were not only victimized, but also specifically victimized by recidivists.
486. See Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric, 76 IND. L.J. 315, 315-16 (2001);
487. Michael Vitiello, "Three Strikes " and the Romero Case: The Supreme Court Restores Democracy, 30 LOY. L.A. L. REV. 1643,1653-61 (1997).
488. This is not unlike the flaw with the deterrence argument discussed above in Part III.C. See supra text accompanying notes 223-225.
489. See, e.g., supra notes 190-191.
490. See, e.g., Stephanos Bibas, Forgiveness in Criminal Procedure, 4 OHIO ST. J. CRIM. L. 329, 336 (2007);
491. see also Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance, and the Role of the Government, 27 FORDHAM URB. L.J. 1599, 1599-1601 (2000);
492. Vitiello, supra note 254, at 1659-61.
493. This different treatment based on victim wishes may arguably run afoul of "the modern criminal law's preference for punishment equality." Carissa Byrne Hessick, Violence Between Lovers, Strangers, and Friends, 85 WASH. U. L. REV. 343, 389 (2007). But see Bibas, supra note 257, at 347 (acknowledging this concern, but responding that victim forgiveness is a "neutral metric[]" that may be appropriately used "to structure and guide discretion").
494. Criminal law ordinarily evaluates the seriousness of a crime according to two factors: the harm done by the offense and the offender's culpability. See Ashworth, supra 167, at 182. For a brief discussion on the importance of victim harm in punishment decisions,
495. see Hessick, supra note 258, at 391-92.
496. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1686 (1992).
497. Id. at 1671-78;
498. see also Jeffrie G. Murphy, Forgiveness and Resentment, in FORGIVENESS AND MERCY 14, 14-34 (Jeffrie G. Murphy & Jean Hampton eds., 1988).
499. Hampton, supra note 260, at 1686.
500. Id. at 1691. Hampton explains: From a retributive point of view, punishments that are too lenient are as bad as (and sometimes worse than) punishments that are too severe. When a serious wrongdoer gets a mere slap on the wrist after performing an act that diminished her victim, the punisher ratifies the view that the victim is indeed the sort of being who is low relative to the wrongdoer.
501. Id.
502. Id. at 1698-99. Hampton's discussion of mitigation is limited to "the appropriateness of punishment for people who commit crimes who are from impoverished backgrounds, and whose crimes are largely explained by those backgrounds."
503. Id. at 1698.
504. See United States v. Thurston, 358 F.3d 51, 80 (1st Cir. 2004) ("Those who donate large sums because they can should not gain an advantage over those who do not make such donations because they cannot."), cert,
505. See, e.g., United States v. Haversat, 22 F.3d 790, 796 (8th Cir. 1994);
506. United States v. McHan, 920 F.2d 244, 247-48 (4th Cir. 1990);
507. United States v. Nava-Sotelo, 232 F. Supp. 2d 1269, 1285 (D.N.M. 2002), rev'd on other grounds, 354 F.3d 1202 (10th Cir. 2003);
508. United States v. Scheiner, 873 F. Supp. 927, 934-35 (E.D. Pa. 1995);
509. see also United States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000) (Rosenn, J., dissenting);
510. WHEELER, ET AL., supra note 10, at 105-08; Henning, supra note 6, at 189 ("One impetus for adoption of the Sentencing Reform Act was the perception that certain types of defendants, mostly of the white-collar variety, were the beneficiaries of lenient sentencing, whereas those charged with other types of crimes, many of them minority group members, received much more drastic punishments.").
511. Henning, supra note 6, at 190 ("In looking at a defendant's works ... it is important to consider the pressure a middle-class person faces in earning a sufficient living and, in many instances, supporting a family, while still performing good works in the community.").
512. It may be possible to alleviate this concern by creating a definition of prior good acts that is sufficiently flexible to account for informal good works; however a definition that is too flexible will undoubtedly create line-drawing problems. See supra Part III.D.
513. Meredith A. Kleykamp, College, Jobs, or the Military? Enlistment During a Time of War, 87 SOC. SCI. Q. 272, 276 (2006).
514. Id. at 277.
515. Id.
516. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 2008, at 368 tbl.568 (2007), available at http://www.census.gov/prod/2007pubs/08statab/socins.pdf.
517. Id. 43.3% of college graduates performed volunteer work, as compared to 30.9% of persons who had completed some college but not obtained a bachelor's degree, 19.2% of persons who graduated high school but did not attend college, and 9.3% of persons with less than a high school diploma.
518. Id.
519. Id. 28.7% of persons employed in the civilian work force performed volunteer work, as compared to 23.8% of persons unemployed.
520. Id.
521. Michael Tonry, Selective Incapacitation: The Debate over Its Ethics, in PRINCIPLED SENTENCING 165, 176 (Andrew von Hirsch & Andrew Ashworth eds., 1992);
522. see also FIRST OFFENDER, supra note 149, at 21 exhibit 1;
523. sources cited supra note 152.
524. See supra notes 153-154.
525. See supra text accompanying notes 91-99.
526. See Kevin R. Reitz, The Enforceability of Sentencing Guidelines, 58 STAN. L. REV. 155, 156-60 (2005) (discussing the "continuum of possibilities for the design of sentencing systems").
527. Such a detailed description and inflexible reduction would mirror other mitigating sentencing provisions in the Federal Guidelines. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (2007) (allowing mitigation for a defendant's minor or minimal role in an offense involving multiple participants).