Considering Caretakers: An Explicit Argument for Downward Departures During Federal Sentencing Mitigation for Caretakers of Children

Authors

Danielle Sparber Bukacheski, University of Miami School of Law

Abstract

The sentencing stage of the federal legal system provides defendants with an opportunity to articulate why the sentencing judge is justified in imposing less severe sentences. Yet, under the Federal Sentencing Guidelines, sentencing judges have been restricted in the characteristics and background information that can be utilized when imposing a downward departure from the recommended Guidelines sentence. More specifically, there is great variability regarding the extent to which family-related circumstances can be utilized as justification for a downward departure due to the Sentencing Commission’s ambiguous language. Considering the damaging effects of incarceration on children when a caretaker is physically removed from society, it is crucial that sentencing judges are empowered to consider caretakers when determining what punishment fits the crime while also promoting the betterment of society.

Legal scholars have recognized that the Guidelines do not allow a downward departure from recommended sentences to be justified by responsibilities to a third party (e.g., children). Therefore, sentencing judges must be presented with an articulated justification for a downward departure utilizing a defendant-centered lens. For a defendant to successfully argue for a downward departure, a defense attorney’s sentencing mitigation must include an explicit and principled rationale. Therefore, in the context of caretaker incarceration, it likely would not be sufficient for a defense attorney to argue that their client deserves a downward departure because incarceration is deleterious for the family, in a general sense.

This Note proposes an explicit and principled argument that can be made for a downward departure based on a defendant’s identity as a caretaker. Because the overall goal of the Federal Sentencing Guidelines is to impose sentences that promote retribution, deterrence, incapacitation, and rehabilitation, these four goals of sentencing can serve as useful guideposts for the sentencing mitigation argument. In effect, the argument for a downward departure will explicitly enumerate the impact of incarceration on all caretakers while promoting the objectives behind the Federal Sentencing Guidelines.

Recommended Citation

Danielle Sparber Bukacheski, Considering Caretakers: An Explicit Argument for Downward Departures During Federal Sentencing Mitigation for Caretakers of Children, 78 U. Mia. L. Rev. 917 (2024)
Available at: https://repository.law.miami.edu/umlr/vol78/iss3/6