4. § 5H Amendments Age (5H1.1) Mental and Emotional Conditions (5H1.3) Physical Condition, Including Drug or Alcohol Dependence or Abuse (5H1.4) Military Service (5H1.11)

5. Reason for Amendments The “result of a review of the departure provisions” undertaken “in part in response to an observed increase in reliance on departure provisions in the Guidelines Manual in favor of an increased use of variances” –USSG App. C, Amend. 739, Reason for Amendment (Nov. 1, 2010)

6. 5 H1.1 Age

7. Used to say: Age (including youth) is not ordinarily relevant in determining whether a departure is warranted.

8. Now says: Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.

10. Judges think age is mitigating 67% -- age is ORDINARILY relevant in determining whether to depart or vary FY2011 – age cited as a reason to sentence below the GL range 995 times, or in approximately 6.7% of ↓ GL sentences (not sponsored by gvmt)

11. Youth is mitigating Less culpable and reform quickly Punishment is harsher than for adults Prison ↑ risk of recidivism in the young

12. Less culpable and reform quickly Research indicates: –Area of brain governing judgment, reasoning, impulse control, and the ability to accurately assess risks and foresee consequences is not fully developed until the early to mid- twenties –More susceptible to peer pressure to engage is risky behavior than those aged 24 and older –Unique capacity to reform

13. Punishment is harsher Particular risk of rape and other violence Target of sexual aggression in prison leads to 17-fold ↑ in likelihood of attempted suicide Solitary confinement ↑ risk of suicide 12-fold

14. Prison ↑ recidivism Exposure to more serious offenders Breaks family ties ↓ ability to earn living legally

15. Increased age is mitigating ↓ recidivism Punishment is harsher

16. Recidivism Drops with Age Sampson, Robert J. and Laub, John H., Life-Course Desisters: Trajectories of Crime Among Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003)

17. Punishment is Harsher Greater proportion of older offender’s remaining life; effective life sentence. And harder time adjusting to prison. Aging process accelerated: 11.5 years older than their chronological ages after age 50 BOP often fails to provide adequate medical treatment

19. Provide the evidence –Facts about the defendant and offense –Empirical evidence about why those facts matter to purposes of sentencing

20. Pepper v. US, 131 S. Ct. 1229 (2010) No question that Pepper’s remaining drug-free for five years, Attending college and achieving high grades, Succeeding at work Re-establishing a relationship with his father, Marrying and supporting a family Are “highly relevant” to the need for deterrence, incapacitation, and treatment and training And “bears directly on the District Court’s overarching duty to ‘impose a sentence sufficient, but not greater than necessary to serve the purposes of sentencing”

21. 5H1.3 Mental and Emotional Conditions

22. Used to say: Mental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)

23. Now says: Mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)

24. Also adds: In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, App. n.6

25. Treatment Purpose Departure Does not appear to require mental illness be present to an unusual degree. Limited to those in Zone C Departure to Zone B only Requires finding that: (a) D “suffers from a significant mental illness” and (b) “criminality is related to the treatment problem to be addressed.”

27. Judges think mental and emotional conditions are mitigating 79% -- mental condition is ORDINARILY relevant in determining whether to depart or vary; 60% said same about emotional condition FY2011 – mental and emotional conditions cited as a reason to sentence below the GL range 741 times, or in approximately 5% of ↓ GL sentences (not sponsored by gvmt)

28. Impaired mental functioning is “inherently mitigating.” -Tennard v. Dretke, 542 U.S. 274, 285-88 (2004)

29. The percentage of defendants with mental illness is approximately the same regardless of criminal history category. -USSC, Recidivism and the “First Offender” 8 (2004), available at http://www.ussc.gov/ Research/Research_Publications/Recidivism /200405_Recidivism_First_Offender.pdf.

30. “[M]entally ill offenders, although more likely than the general population to offend generally and violently, are less likely to reoffend, both generally and violently, than a known nondisorder offender population.” A. Murray Ferguson, James R.P. Ogloff and Lindsay Thomson, Predicting Recidivism by Mentally Disordered Offenders Using the LSI- R:SV, 36 Criminal Justice and Behavior 5, 6 (2009).

31. 5H1.4 Physical Condition

32. Used to say: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted. Drug or alcohol dependence or abuse is not a reason for a downward departure.

33. Now says: Physical condition or appearance, including physique, may be relevant in determining whether a departure is warranted, if the condition or appearance, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. Drug or alcohol dependence or abuse ordinarily is not a reason for a downward departure.

34. Also adds: In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, App. n.6

35. Treatment Purpose Departure Limited to those in Zone C Departure to Zone B only Requires finding that: (a) D “is an abuser of narcotics, other controlled substances, or alcohol” (b) “criminality is related to the treatment problem to be addressed.”

36. Judges think drug and alcohol dependence is mitigating 49% -- drug dependence is ORDINARILY relevant in determining whether to depart or vary; 47% said same about alcohol dependence FY2011 – drug dependence or alcohol abuse cited as a reason to sentence below the GL range 489 times, or in approximately 3.3% of ↓ GL sentences (not sponsored by gvmt)

37. atment no drug treatment Drug Treatment No Drug Treatment

38. Drug Treatment in the Community Works Even Better 17.9% - Intensive supervision (treatment oriented programs) 8.3% - Drug treatment in the community 6.3% - Drug treatment in prison

40. Especially for Repeat Offenders Repeat Offenders benefit more than first- time offenders from drug treatment

41. Long prison terms are not effective in reducing recidivism (and may increase it!) - “The research evidence is unequivocal that incarceration does not reduce recidivism”

42. Judges think physical condition is mitigating 64% -- physical condition is ORDINARILY relevant in determining whether to depart or vary FY2011 – physical condition cited as a reason to sentence below the GL range 815 times, or in approximately 5.5% of ↓ GL sentences (not sponsored by gvmt)

43. Physical Condition May increase the relative severity of the sentence. Those with chronic conditions may not receive adequate treatment in BOP Infirmity reduces likelihood of recidivism

44. Physique Because “[p]hysical force, or the threat of physical force, is the most common element of coercion used in prison rape,” physical build is a “particularly strong indicator of whether a prisoner will be victimized.”

45. Military Service 5H1.11

46. Used to say: Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.

47. Now says: Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.

48. Judges think military service is mitigating 64%- Stress related to military service is ORDINARILY relevant in determining whether to depart or vary FY2011 – military service/charitable works/ good deeds cited as a reason to sentence below the GL range 383 times, or in approximately 2.6% of ↓ GL sentences (not sponsored by gvmt)

49. “Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.” –Porter v. McCollum, 130 S. Ct. 447 (2009)

50. Less Culpable –Traumatic Brain Injury –Post-traumatic stress disorder –Chronic pain and below normal physical functioning Less likely to recidivate

53. The Good from 2011 Mitigating Role adjustment FSA Amendments Straw Purchasers

54. Mitigating Role §3B1.2 + 1 - 2 All Helpful

55. Addition to §3B1.2 D who is accountable for a loss amount that greatly exceeds the defendant’s personal gain from a fraud offense AND had limited knowledge of the scope of the scheme is not precluded from mitigating role adjustment

56. Deletions from §3B1.2 As with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted. (n.3(C)) It is intended that the downward adjustment for a minimal participant will be used infrequently. (n.4)

57. ?

59. It is there! “The Commission determined that these two sentences are unnecessary and may have the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances.” - USSG App. C, Amend. 755, Reason for Amendment (Nov. 1, 2011)

62. FSA Amendments BoL capped at 32 if defendant was a minimal participant under 3B1.2 – § 2D1.1(a)(5)

63. The Super Vulnerable Ostrich Reduction § 2D1.1(b)(15)

64. ↓ OL by 2 if D is minimal participant AND: D motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense; D received no monetary compensation from the illegal purchase sale, transport, or storage of controlled substances; and D had minimal knowledge of the scope and structure of the enterprise

65. Straw Purchasers

66. OL from 12 to 14 convicted under 18 USC 922(a)(6) or 924(a)(1)(A) and knowingly distributed to a prohibited person departure for straw purchasers where – no SOC applies – D motivated by intimate/familial relationship or threats/fears and o/w unlikely to commit the offense; – D received no monetary compensation from the offense 2K2.1 n. 15

68. Safety Valve Now available for chemical precursors under 2D1.11 2-level ↓ if safety valve criteria met NOT retroactive