Rashomon and the Criminal Law:
Mental Disability and the Federal Sentencing Guidelines

Michael L. Perlin
Keri K. Gould

The Federal Sentencing Guidelines (Guidelines) were written to eliminate, or at least to lessen, arbitrariness and caprice and to establish objective, normative standards against which convicted defendants' behavior could be assessed. The Guidelines -- promulgated in response to criticisms of indeterminate sentences and seemingly inexplicable disparities in sentences for like crimes -- were meant to guide judges and to educate the public about factors that could either increase or decrease sentences.

One such factor is mental disability. A federal judge can depart from the prescribed ranges when "the defendant committed a nonviolent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants." In such cases, a lower sentence "may be warranted" to reflect the extent to which the reduced mental capacity contributed to the commission of the offense as long as the defendant's criminal history "does not indicate a need for incarceration to protect the public." It should be noted, however, that a Sentencing Commission policy statement declares that mental and emotional conditions mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant ....are not "ordinarily relevant" in determining whether a sentence should be outside the Guidelines' ranges.

Great discretion is vested in the trial courts in determining when asentence reduction is appropriate under the Guidelines, and decisions not to depart from the Guidelines are generally not appealable. Only when it appears that the district court misunderstood its authority to reduce the defendant's sentence will appellate courts be willing to disturb sentencing determinations.

The cases reported so far reflect no coherent reading of the Guidelines and no real understanding of the role of mental disability, short of in exculpating insanity defense, in criminal behavior. Federal judges are remarkably inconsistent in their reading of mental disability. The caselaw suggests that federal judges have not seriously considered the way mental disability should be assessed in sentencing decisions, and that random decisions generally reflect a judge's "ordinary common sensical read" of whether an individual defendant "really" could have overcome his disability.

We contend that this is caused by several factors:

(1) a lack of understanding on the part of federal judges and defense counsel as to the meaning of mental disability and its potential interrelationship with criminal behavior;

(2) an attitude by federal prosecutors that such mitigating evidence is a mere play for sympathy and an inappropriate factor for consideration at the sentencing phase, an attitude given strong support by Justice Scalia's dissent in Penry v. Lynaugh, when he argued that the presentation of testimony to a death penalty jury about a defendant's mental retardation and childhood sexual and physical abuse led to an inappropriate "outpouring . . . [of ] unfocused sympathy;"

(3) the structure of the insanity defense as an all-or-nothing alternative, causing many to believe that lesser evidence of mental disorder is simply an insufficient factor to consider in sentencing decisions;

4) and ambivalence about mental disability as exculpatory evidence, which frequently results in putatively-mitigating testimony serving an aggravating function, most notably in death penalty cases.

This set of misassumptions leads to what we call the Rashomon effect the way that multiple perspectives will lead to multiple interpretations of the same "facts," an effect that inevitably distorts the intent of any set of guidelines. At the roots of these misassumptions is another set of unconscious factors that compel judicial behavior. Most important among these factors are: (I) punitive urges that drive the criminal justice system in spite of statutory or caselaw to the contrary; (2) "sanist" behavior in the criminal justice system; 17 and (3) pretextual behavior of courts and other factfinders in that system.

Although there is a robust developing literature about almost all other aspects of the Guidelines, virtually nothing has been written on the application of the Guidelines to mentally disabled persons. This Article seeks to explore that subject by illuminating the ways in which prejudice, misunderstanding, and distrust have infected the federal sentencing process. We begin in Part II with a brief history of the Guidelines, and then, in Part III, we show how the mental disability language in the Guidelines was chosen. Part IV then defines "sanism" and "pretextuality," and Part V shows how those concepts have affected the jurisprudence of the courts on this issue. Then in Part VI, we more closely demonstrate how the courts' decisions in this area reflect unconscious feelings about mentally disabled defendants, feelings that stem from our urge to punish and that are reflected in the sanist and pretextual court system. We conclude by looking first at these questions through a therapeutic jurisprudence lens and then by offering some modest policy recommendations for the future such consideration will be forthcoming.