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April 8, 2014

Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?

As we start digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.  Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.

Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.

April 8, 2014 in Guideline sentencing systems, Theories of punishment | Permalink


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I believe one of the purposes of sentencing is to come up with a sentence that society, prosecutors, law makers, and even potentially the defendant find suitable for the crime that was found to be committed. Sentencing hearings permit the prosecution as well as the defense to argue aggravating and mitigating factors. I do think offender age is relevant. I also think evidence of PTSD or military service is relevant. But to go so far as mandate a judge to consider these offender characteristic as a "constitutionally essential sentencing consideration" is an extreme. By stating that a judge must consider this because it is constitutionally essential opens a door to further litigation. What if a judge fails to state on the record that he considered these specific characteristics? Does this automatically open the door to defendant appeals? I feel a judge should be permitted to consider this, but if a judge feels that a certain offender characteristic is unrelated or irrelevant to the case, should he still be mandated to consider it? I think it is a much better system to note the importance of these offender characteristics and to note that these could have an effect, either aggravating or mitigating, for the defendant, and allow consideration but not mandated consideration.

I think to create a set of guidelines for judges to follow in consideration of these matters would be limiting. Every case is unique and to make an attempt to write out everything that could potentially come up with consideration of specific offender characteristics would be impossibly difficult, time consuming, and potentially problematic. I think that is the ultimate reason why the Sentencing Guidelines were changed from being mandatory to being discretionary. Judges should be permitted to consider what they consider relevant, what has been presented to him by the prosecution and defense, and weigh those factors accordingly. If we are confident enough to allow judges the discretion to sentence the defendant, we should be confident enough to grant judges the discretion to consider the specific offender characteristics he deems relevant to the case.

Posted by: Jessica W. | Apr 8, 2014 3:10:33 PM

A possible answer to the question raised by Professor Berman in class:

In class today, Professor Berman asked why offender criminal history should matter. The idea Professor Berman used to flesh out the possible irrationality of considering offender criminal history is the fact that the inverse situation (wherein we would reward someone even more if they had a history of doing good deeds) is seen as a rather bizarre and awkward way of handling things. I suppose a suspiciously terse response would be that the State by and large does not care if you do good, as long as you don't do bad. The State has minimal interest in me choosing between a morally inert action (say eating a grilled cheese sandwich) or a morally good action (helping a senior citizen cross the street[is this still a thing? Perhaps help a senior citizen access free Starbucks wifi?]).

I think what many of the possibly relevant offender characteristics are trying to capture is a sense of someone's pain aversion threshold. Let me explain a little:

A fairly understood concept among animals (humans included) is the idea of negative reinforcement. Typically through pain sensation. In many instances pain is the body's way of saying "hey, whatever you just did. Don't do that again". This is a concept underlying a fair amount of pet training. This provides an interesting way to look at sentencing issues. Since we are in the non-capital punishment realm, and since the vast majority of cases will not end with a LWOP sentence, the State is left with one inevitable fact: Most offenders will be leaving prison and entering society at some point. Because of this, the most important policy concern (in my opinion) is that of specific offender deterrence. At the very least we do not want this particular offender to reoffend. So the State has immense interest in making sure they hit a persons particular pain threshold so that they understand not to commit that offense again. So by considering offender characteristics, the State is essentially trying to calculate (guess-timate is probably more fitting)how much prison time (a proxy for pain) will be needed to negatively reinforce the offender from doing that action again. What is the pain threshold of this particular offender, so that we are sure to at least cross it. This I think is the crux of why offender background seems like such a slam dunk reason for increasing punishment. Obviously, so the theory goes, we did not cross the offender's pain threshold so as to avert him from committing the crime again. Clearly he needs more! This could explain Age consideration as well. Is this individual rationally mature enough to recognize his own pain-threshold? The same reasoning for mental disability as well. Education is an interesting factor that could have some unsettling results under this approach. Should we presume that an educated individual probably has a lower pain threshold and thus will "get the message" with a more lenient sentence? Since education and wealth are largely correlated is this just another ad hoc justification for punishing the poor more than the rich?

I know this is a strange way to view the (potential) underlying rationale behind offender characteristics but it is nonetheless an interesting way to view the issue. I can already spot a fair number of problems with this approach but I won't go in to much detail on them here since this post is already ridiculously long. Just food for thought...

Posted by: Nick Allen | Apr 8, 2014 10:00:15 PM

Two points:

1) Notwithstanding the Court's rulings regarding race (never consider) and age (almost always consider), I hesitate to add other offender characteristics to the "never" or "always" categories. For anyone who knows me, I'm not the biggest fan of absolutes.

2) With that being said, I know this question asks us to consider offender characteristics only. But, in the course of sentencing an individual, I think the nature of the crime at hand should have at least some effect on how the judge evaluates/weighs offender characteristics.

For instance, sticking with criminal history, in the case of murder, if a defendant has committed a series of other violent offenses, I'm inclined to view such priors as aggravating factors (especially because they're relevant to the crime at hand --- murder is violent).

But, in the same case of murder, if the defendant only has a history of shoplifting or theft, I'm not completely sure if/how the prior shoplifting/theft sentence makes the murder any worse/worth punishing more.

That leaves me to ask the following (especially when discussing criminal history):

- Should the sentence only reflect the specific crime(s)committed?

- Should the sentence reflect a defendant's history of engaging in a certain type of criminal activity (the murder and all other previous violent crimes)?

- Or, should the sentence just highlight that this defendant is "really bad person" ?

Posted by: Cheyenne C. | Apr 9, 2014 12:42:43 AM

Yesterday in class Professor Berman had discussed how considering criminal history was a purely utilitarian factor in sentencing. As a retributivist, I felt a sense of uneasiness about my views because I think it just makes sense that we ought to punish those who commit the same crimes more than once. Yet under retributivist thinking the idea is that once the individual is released they have "done their time" and thus they are offered a clean slate and have paid their debt to society. I am glad that professor Berman brought this up because it made me question whether a part of me was a utilitarian. But after some thought I have come to the conclusion that the retributivist CAN believe in increased crimes for repeat criminals or taking into consideration past criminal conduct in criminal sentencing. The reason is this- The people of this country pay for the prisons to operate, the idea being that once the individual comes back they are rehabilitated. Therefore I do not feel that once a criminal comes out of prison they have paid their debt to society, they now owe it to society to be a productive member. SO by again violating the same or some different law the criminal in my mind has done an even worse wrong than a first time offender. The crime could be the exact same bank robbery, but I believe having gone through the process of spending the taxpayers money, in both prison and the legal defense process, that crimnal adopts a higher level of culpability and therefore the wrong is that much worse because not only is the crime itself wrong, but the person has also wronged the judicial system, penal system, and the taxpayers. I feel these factors make the harm worse and therefore I feel dishing out a higher sentence based on previous criminal history could be in conjunction with the retributivist line of thinking.

Posted by: Chris LaRocco(OSU Student) | Apr 9, 2014 9:04:53 AM

Another factor to be added to the always column [at least with regards to the death penalty]: intellectual disability.

It goes back to Atkins v. Virginia and is still being played out in Hall, but even though "Death is Different" this is still at least one setting where this offender factor is a constitutionally required consideration.

Does this apply in all sentencing? Could it?

While Atkins was decided on Eighth Amendment grounds, the increased suggestibility of those with intellectual disabilities, as well as their often lowered culpability for their own actions, suggests that this could also be a Due Process concern, with some shades of "traditional notions of fairness" thrown in just to keep things interesting.

A person can be guilty of a crime (where, for instance, the insanity defense failed or was unavailable) while still being far less culpable of their crimes than a person who had a better appreciation of the illegality and/or wrongness of their actions. A person with intellectual disabilities who only barely is able to get through the day who is pushed to the breaking point and kills someone in the moment has far less culpability than the person who spends decades building a massive fraudulent investment scheme to bilk thousands of people out of their life savings.

There are ways to frame this requirement from pretty much every punitive theory I can think of, and it seems manifestly unfair to completely ignore an offender's ability to appreciate the nature of their crime.

Which all circles back to PTSD. Is the consideration of military service just a way of mandating consideration of PTSD, depression, and other mental illnesses without actually saying "you need to look at an offender's mental health"? These people have served their country, so the thinking goes, let's give them a break [or however you want to phrase that]. Why not give a break to other people with the same illnesses who didn't serve in the military? Why is service in the military more relevant than the mental illnesses that may be caused by a person's experiences while serving the military? Agents of coercive state force should be subject to it less than others? Or is it not more relevant, really, but the statutes just require one to be considered while the Constitution actually requires the other?

At some level, maybe this is a (very small) step back towards a more rehabilitative ideal, rather than mass incapacitation that all too often serves the secondary purpose of locking up and subsequently segregating the poor who are unable to obtain care for their mental health ailments.

Although standards lead to greater disparity in sentencing than rules, maybe greater disparity can also be more fair.

Posted by: Matthew C. | Apr 9, 2014 9:28:48 AM

I think I am inclined to agree with Jessica. I believe that judges should have broad discretion as to how they want to consider certain offender characteristics such as military service, family situation, etc. I do not think that judges should be required to consider these things mainly because I think sentencing should fall closer to individualized justice on the individualized justice vs. equal justice scale. As Jessica noted, every case is different and in order to accomplish the purposes of sentencing (both retributive and utilitarian goals), judges should be able to consider offender characteristics that they deem relevant in a certain case.

If a judge is required to take into account military service, for instance, he may be forced into giving a veteran a lower sentence than a non-veteran who may actually deserve a lower sentence. This would frustrate the just deserts principle of retribution. It may also frustrate deterrence and rehabilitation rationales. This favoritism may even cause individuals to begin to resent the justice system (a factor deemed important by the Gall Court).

I realize veterans provide a great service to this country and that sometimes their mental health is damaged by that service, but that factor can be accounted for by looking at the mental or emotional condition factor instead of the veteran status factor. Therefore, although military service may be relevant in some cases, it certainly wont be relevant in all cases. Allowing judges flexibility in determining what offender characteristics are relevant and weighing those factors accordingly seems like it will make for a fairer justice system than one that mandates judges to look at factors deemed important by the elite Sentencing Commission and the Legislature.

Posted by: Heather S | Apr 9, 2014 2:28:22 PM

I’d like to keep consideration of offender characteristics non-mandatory and highly discretionary. I don’t think that there is any specific offender characteristic that absolutely must be considered at sentencing in every case. I agree that often offender characteristics such as prior criminal record, cooperation with the government, age, or other aspects of the offender’s personal history can be relevant at sentencing. Still, when I compare what the offender did versus who the offender is, my instinct is that what is extraordinarily more important than the who.

Mandatory consideration of certain offender characteristics seems to write stereotypes into sentencing law. For example, it makes me uncomfortable to say that military service must be considered at sentencing because military members who have served in combat often have PTSD. Offenders should be evaluated as individuals and not by their associations with particular groups. If an offender has PTSD and it is relevant to his offense, then it should be considered regardless of his military service. I don’t think we need to write mandatory sentencing considerations into the law to ensure that judges consider the PTSD of a military member who has PTSD.

Not only would such a mandatory consideration be unnecessary, but I think it also perpetuates potentially harmful stereotypes. Many military service members develop PTSD, but many do not. There have been instances of employers that are wary of hiring former service members because of the notion that they are all somehow unstable because of their experience. I think requiring consideration of military service because some develop certain mental conditions perpetuates the potentially harmful stereotype that veterans have difficulty readjusting to civilian life.

Posted by: Lauren Brady | Apr 10, 2014 11:14:57 PM

During sentencing, it is inevitable that a judge will consider factors outside of the criminal act for which the defendant is convicted. Aside from race, there are almost no offender characteristics that should be off the table for sentencing considerations. A defendant’s appearance in a criminal court is hardly ever happenstance—a number of factors and life events likely contributed to the defendant’s current position. When determining what sentence best suits the individual offender, the judge should thoroughly understand the offender and consider anything and everything the judge finds relevant or explanatory. A judge may find the defendant’s gender, socioeconomic status, childhood experience, military service, psychological health, religion, political outlook, or relationship with his/her mother relevant (to name a few…). Obviously, if considerations of gender, socioeconomic status, religion, politics, etc. are used against the defendant in an arbitrary or discriminatory manner, the judge should be precluded from making such considerations. However, if the offender characteristic is mitigating or especially relevant, the judge should take it into consideration.

In every case, the judge should consider family ties. While a criminal sentence is always detrimental to the freedom and life of the sentenced defendant, these sentences are also harmful to the families of those defendants. Before imposing a sentence, the judge should ask whether the defendant has significant family ties—whether he or she is a father/mother; whether he or she a single parent; whether he or she is the sole provider for those children; whether he or she is the sole caretaker for his or her elderly mother. And further, was this a crime of necessity—for instance, did the defendant turn to drug dealing to provide for his wife and two young children? These family ties are not insignificant and an empathetic sentencing judge could have an enormous impact on the welfare of an entire family if the ties are considered before imposing a lengthy sentence. On the other hand, family ties should also always be considered against the defendant in child rape or pornography cases. Whether an offender has young children/nieces/nephews/grandchildren should always be considered when determining the length and conditions of such a sentence. The welfare of the children affected by law and order should be considered in every case in which a defendant has family ties.

Posted by: Julie Keys | Apr 14, 2014 10:38:36 PM

The guidelines are already written such that a judge could consider military service as a mitigating factor if he or she so chose. Specifically declaring that military service seems excessive. Judges who are not considering honorable military service a mitigating factor at sentencing, are probably unfit to be judges. The proposition that honorable military service is a good thing and might mean the person is less inclined to repeat offenses is, to me, about as controversial as saying “many people like ice cream”, or “Michael Jordan was a great basketball player.”

Though we in the United States would likely never have these problems, advantaging military members either in military courts or in civilian courts has created injustices in other parts of the world. In Latin America, in particular, soldiers are often given preferential treatment by military courts and/or civilian courts. Often, these privileges are vestiges of authoritarian regimes borne out of coup d’etats led by strong military leaders. Maybe I’m relying too strongly on my gut reaction here, but I simply don’t like any American law, rule, or guideline that even remotely reminds me of authoritarian Latin America.

Specific provisions that venerate any military service are potentially problematic. Seeing someone with, say, a bad conduct discharge benefitting from an amendment to the sentencing guidelines is unlikely to sit well with me. Honorable military members should be given every benefit society can possibly give them, whether through the courts, post-9/11 GI Bill funding for education, or other avenues. Though, the way the guidelines currently are currently constituted, judges have the discretion to fairly reward military service: judges can “give points” to good military members, without potentially giving bad ones “free rider” benefits. I would not be in favor of a change.

Posted by: Adam | Apr 16, 2014 3:08:34 PM

Two things that should certainly be looked at are existing dependents and utility to society. If the individual has children, who depend on him or her then that individual should be given a lesser sentence. This is a purely utilitarian view. The fact is that when children grow up with a parent in prison it makes them much more to have criminal tendencies. I understand that this will lead to unequal justice, but in this case I think it would be an even great injustice to the children and society as a whole, because without a parent then that child has a lower likelihood of being a productive member of society. So it is essential to remember that not only are you punishing the criminal, but also punishing their children. Certainly dependents should be considered in sentencing.
Additionally current utility to society should certainly be considered. In the more recent post on "convicting two drug dealers" one of the members was a contributing member to society while the other is not. Such a factor should be taken into consideration, if the person is paying taxes and producing, then punishment seems to have less of an effect and it creates a net drag on society.

Posted by: Chris LaRocco(OSU Student) | Apr 18, 2014 8:46:45 PM

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