post-offense rehabilitation efforts. For the reasons set forth below, the Court grants McBroom's downward departure requests.
McBroom has presented evidence of his diminished capacity and his rehabilitation efforts through his own affidavit and letters from treating professionals.
McBroom's uncontroverted affidavit recounts a traumatic life history, starting with years of childhood sexual abuse by his father, and eventually degenerating into alcohol and cocaine addiction and an obsession with pornography. A12-A30.
McBroom kept the sexual abuse secret until he finally confessed it to a therapist in approximately 1984. Although McBroom managed to obtain a law degree and work as a lawyer, he continually abused alcohol and cocaine. McBroom also frequented "peep shows," called "900" sex lines, and viewed pornographic pictures. Due to his addictions, his marriage ended in divorce after seven years. A19 (McBroom Cert., P 34). He went through at least four stays in drug and alcohol rehabilitation. The final stay ended in late 1993; McBroom has not had a drink or taken drugs since then. A23 (McBroom Cert., P 49)
Although McBroom managed to stop drinking and taking drugs, he soon discovered the vast array of pornography, including child pornography, available on the Internet. He states that his "attraction to pornography on the computer was borne of sheer amazement at the volume of available material. ... The amazement turned to fascination, and ultimately to obsession." A24 (McBroom Cert., PP 52, 53). McBroom kept his obsession secret from his girlfriend, but continued to view the pornography even after he knew that the Federal Bureau of Investigation was investigating him: "It would have been so easy (and wise) for me to simply delete all of this material from my computer's hard drive once I learned that the FBI had been to my building, but I couldn't do it. I had to keep looking at it, knowing what was coming." A25 (McBroom Cert., P 58).
McBroom was treated by a therapist, Edward R. Crowley, who specializes in the treatment of male survivors of sexual abuse, for several years. A26 (McBroom Cert., P 59). He is now in weekly therapy with Richard B. Gartner, Ph.D., Director of the Sexual Abuse Program at the William Alanson White Institute for Psychiatry, Psychoanalysis, and Psychology. Defendant's Mem., Exh. A.; A26 (McBroom Cert., P 60). Dr. Gartner stated in a report that McBroom has exhibited "a wide spectrum of obsessive and compulsive behaviors, including severe alcoholism and drug abuse, sexual compulsivity (particularly related to pornography) combined with sexual dysfunction, overeating, and extreme problems with managing money and debt." A38 (Report of Richard B. Gartner, Ph.D.). Dr. Gartner concluded that McBroom's compulsivity extended to viewing pornography and that this "compulsivity led to a significantly reduced mental state which contributed in a large degree to Mr. McBroom's commission of the offense for which he has been convicted." A98 (Supp. Rept. of Richard B. Gartner, Ph.D.).
McBroom has also been receiving regular medical treatment from a psychiatrist, Dr. Ronald M. Winchel, for cyclothymia, a form of bipolar disorder, and for an impulse control disorder. A26 (McBroom Cert., P 61). Dr. Winchel stated in a supplemental letter that "the core nature of Impulse Control Disorders is the inability to resist the urge to act in accord with the impulse. ... An important point about Impulse Control Disorders [is that] the urge to act is overpowering and is not fueled by logic or pursuit of pleasure. (The only apparent 'reward' is the surcease of overwhelming anxiety and agitation which accompanies the completion of the impulsive act)." Letter (12/1/97) of Ronald M. Winchel, M.D.
McBroom also details his efforts to get his life under control since the commission of this offense. He has been sober since December 1993. He attends Alcoholics Anonymous meetings every day, and organizes speaking engagements for several AA groups in his area. He frequently speaks about his own experiences at AA chapters throughout the state. As noted above, he receives regular psychological and psychiatric treatment, and according to his doctors, he has been compliant in taking medication for his obsessive-compulsive disorder and depression. Defendant's Mem., Exh. A; Letter (12/1/97) of Ronald M. Winchel, M.D. Dr. Winchel stated that in his view, "McBroom makes no attempt to minimize his behavior. ... He has been consistent and unwavering in his desire to get his urges under control." Id.
Although McBroom voluntarily surrendered his license to practice law as a result of his guilty plea, McBroom has been employed full-time at a legal staffing firm in Fort Lee, New Jersey for the past 10 months. He also makes regular support payments to his ex-wife and visits regularly with his sons.
At his original sentencing, McBroom sought downward departures for an overstated criminal history and extraordinary family ties, as well as diminished capacity. The Court denied all departure requests. McBroom did not appeal the denial of the criminal history and family ties departures; therefore the Third Circuit's mandate to this Court on resentencing does not involve those issues. To the extent that those departures could be raised on resentencing, however, the Court denies them for the reasons set forth in the original sentencing opinion.
A. Diminished Mental Capacity
The task of the Court in this proceeding is not to determine guilt but punishment. There is much talk today about the "abuse excuse" as emasculating the criminal law. Psychology seeks to explain conduct while the law is required to judge. That conduct can be explained does not mean that it must be excused. However, if the criminal justice system is to maintain its integrity and effectiveness, framing an appropriate sentence may legitimately consider factors that should not be considered on the question of guilt. One of these factors is the diminished capacity of the defendant as defined in U.S.S.G. § 5K2.13.
In imposing the original sentence on McBroom, the Court found that McBroom clearly possessed his mental and intellectual faculties and was capable of exercising the power of reason, and thus was not suffering from a significantly reduced mental capacity under U.S.S.G. § 5K2.13. A87 (Slip Op. at 10). The Third Circuit, however, held that a court evaluating a defendant's claim of significantly reduced mental capacity must consider both the defendant's cognitive capacity and his volitional capacity:
A person may be suffering from a "reduced mental capacity" for the purposes of § 5K2.13 if either:
(1) the person is unable to absorb information in the usual way or to exercise the power of reason; or