time--the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline." Koon, 116 S. Ct. at 2051.
Koon thus carves out a large area where the district court is empowered to depart, but restricts the district court's discretion to depart when the grounds for departure are not mentioned in the guidelines.
The Court first notes that the Guidelines do not specifically prohibit use of this factor in determining whether to depart.
Under Third Circuit law, however, a factor may be categorically proscribed from consideration even though it is not in the list of "forbidden" factors in the Sentencing Guidelines. See Haut, 107 F.3d at 219 (dubious veracity of government witnesses categorically proscribed despite not being a "forbidden" factor).
Haut is distinguishable from this case. The factor considered in Haut, second-guessing a jury's assessment of guilt, by its very nature would, if permissible as a basis for a downward departure, "sap the integrity of both the Guidelines and the jury system." Haut, 107 F.3d at 223. Considering the conditions of pre-trial confinement does not pose a similar threat to the jury system or Guidelines.
Therefore, the Court does not find this factor to be within the narrow range of factors that are categorically proscribed from consideration even though they are not explicitly listed as "forbidden" factors by the Sentencing Guidelines.
The Court next notes that a criminal defendant is often placed in pretrial confinement; the Sentencing Commission, therefore, presumably considered the fact of pretrial confinement when formulating the guidelines. Mere pretrial confinement, therefore, is not unusual at all and cannot serve as the basis of a downward departure. See Koon, 116 S. Ct. at 2052 (loss of civic employment after civil rights conviction not unusual and "cannot take this case out of the heartland").
Unusual pretrial confinement, however, in either length or severity of condition, can properly be considered by the sentencing court.
The Court's conclusion follows from the Supreme Court's holding in Koon that the "hardship" of successive state and federal prosecutions can serve as a basis for a downward departure. Here, too, the "hardship" of pretrial detention, if sufficiently atypical, could serve as a basis for a downward departure.
The Third Circuit's recent decision in United States v. Romualdi, 101 F.3d 971 (3d Cir. 1996), also supports the Court's conclusion. In Romuladi, the Third Circuit vacated a sentence of home confinement imposed by the district court, because the district court improperly applied U.S.S.G. § 3B1.2 (role in the offense). The defendant had already served nearly six months of home confinement by the time the appeal had been decided. Before remanding the case for resentencing, the Third Circuit noted that "the fact that [the defendant] had already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others . . . . The district court was free to depart." Id. at 977.
Although the Court recognizes that pretrial detention is not "punishment" within the constitutional meaning of the word, United States v. Salerno, 481 U.S. 739, 746, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987), even a regulatory measure, such as pretrial detention, can have deterrent and punitive effects. There can be little doubt that pretrial detention in substandard conditions can have a punitive effect not contemplated by the Guidelines. Cf. Artway v. Attorney General, 81 F.3d 1235, 1263 (3d Cir. 1996)(ostensibly regulatory measure can have punitive effects). Following both Romuladi and Koon, the Court concludes that it has the authority to depart based on atypical conditions of pretrial confinement.
2. The Court's Decision Whether to Depart on the Facts of This Case
The Court next addresses whether the pretrial detention conditions at the Union County Jail are sufficiently atypical to take this case out of the Guidelines' heartland. This inquiry will proceed along two lines: first, the length of the pretrial confinement; and, second, the nature of the pretrial confinement.
It is plain that the Sentencing Commission simply never considered whether substandard pre-trial detention conditions can be the basis for a downward departure.
In addressing whether to depart in this case, therefore, the Court bears in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be "highly infrequent." Koon, 116 S. Ct. at 2045.
The introduction to the Guidelines manual makes clear that:
The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
U.S.S.G., Ch. 1 Pt. A(4)(b) at 5-6.
The Court first addresses the length of pretrial confinement on the facts of this case to determine whether Mr. Sutton's case falls outside the "heartland." According to Defendant's submissions, he has been housed in Union County Jail for almost ten (10) months. As Defendant admits, however, this delay is attributable in large part to Defendant himself, who has engaged in plea negotiations and in providing cooperation to the Government. Furthermore, the Defendant has not produced any evidence that this delay is in any way unusual in comparison with the delays experienced by other defendants housed elsewhere. Such evidence might include a comparison of the delays other pretrial detainees experience, for instance. Without such comparative data, it is impossible for the Court to conclude that the delay experienced here was "unusual" so as to transform the Defendant's situation into an atypical case not contemplated by the Guidelines.
Next, the Court addresses whether the conditions of the Defendant's pretrial detainment pose a hardship on the Defendant to such an unusual degree as to warrant a downward departure.
The Defendant has not produced any evidence indicating that the conditions at Union County Jail are atypical as compared with jails in other jurisdictions. Such evidence, obviously, is critical in determining whether the conditions at Union County Jail deviate from the norm. Furthermore, the Report produced by Mr. Sutton, while being highly critical of the recreational and food facilities at the Union County Jail, also cited improved medical and educational facilities. (Report at 35-41).
In light of the inadequacy of the record, the Court declines to take the "highly infrequent" and extraordinary measure of departing downward based on conditions of pretrial confinement.
As an ancillary matter, the Court writes to urge the Sentencing Commission to address the issue of whether substandard conditions of pretrial detention can ever properly be considered as a basis for downward departure. The Court believes sentencing courts would benefit from a pronouncement from the Sentencing Commission as to whether such conditions should be a "forbidden" factor.
For the reasons set forth below, the Court believes that the Sentencing Commission should make conditions of confinement a forbidden factor in determining whether a court should depart downward. United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993), held that a downward departure for an unduly long period of detention was unavailable as a matter of law. Restrepo, however, was decided before Koon. Its holding that a court is categorically excluded from considering such factors does not, in the Court's estimation, survive Koon. Restrepo nevertheless provides a compelling reason not to introduce conditions of pretrial confinement into the sentencing analysis: there are other mechanisms in the civil law that are designed specifically to address the problem of substandard jail conditions. See id. at 646 ("any unneccessary delay in the initiation of deportation proceedings for the convicted alien is, at a minimum, contrary to the spirit of the law. Anticpatory "relief" from a possible delay, however, by way of a downward departure in sentencing is speculative and inappropriate. Remedy for such a delay may be more appropriately be sought either by writ of habeas corpus or by a lawsuit challenging the pertinent policies . . ."). Using downward departures to foment prison administrative reform is awkward and far removed from the aim of the Sentencing Guidelines. In particular, allowing consideration of conditions of confinement as a basis for a downward departure would vitiate the Guidelines' goal of uniformity in sentencing. Furthermore, because defendants receive full credit against their term of incarceration for the time they spend in pretrial detention, the discretionary power to depart downward for conditions of pretrial conditions will encourage delay on the part of pretrial detainees. For these reasons, the Court believes sentencing courts should be categorically forbidden to consider the conditions of pretrial confinement as a basis for a downward departure.
For the reasons set forth above, the Court concludes that Mr. Sutton's total offense level is 25 and his criminal history category is II, making the applicable sentencing guideline range 63-78 months.
July 22, 1997
WILLIAM G. BASSLER, U.S.D.J.