Kelly M. Neff


Although the Federal Sentencing Guidelines have strived to standardize the sentencing ranges applicable to similarly situated defendants, the Supreme Court has affirmed that the guidelines have not usurped all the sentencing discretion of trial judges. Thus, if a trial judge notices a mitigating or aggravating factor, a judge will examine the factor to determine whether it is an encouraged, discouraged, or forbidden departure ground and then decide whether and how it should affect the defendant's sentence. Many defendants have argued that their cultural beliefs, which may tend to mitigate their mens rea or probability of recidivism, render them distinct from the average offender of the particular crime and therefore should be considered as a mitigating factor when determining their sentence. Many judges have agreed that culture is relevant in sentencing and have departed in cases where defendants pled that their assimilation to American norms and mores warranted consideration. In stark contrast, judges have not allowed similar departures for those that have maintained cultural beliefs distinct from that of the American majority. Although culture is not an explicitly proscribed sentencing factor in the guidelines, courts have resisted using culture in the latter context due to the fear that cultural considerations in those situations was too akin to forbidden sentencing considerations such as race, religion, creed, and national origin. A thorough examination of what culture entails evidences that culture is distinct from those prohibited areas. Thus, courts should recognize and uphold our nation's ideals of cultural pluralism and diversity, and resolve this sentencing disparity in favor of downward departures for cultural difference claims.

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