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 Aberrant Behavior 

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Michael Santos

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Learn how the concept of aberrant behavior influences the federal sentencing guidelines. When behavior that led to a criminal charge is inconsistent with a person’s character, a downward departure from the guidelines may be warranted.

The U.S. Sentencing Commission mentioned “aberrant behavior” as a potential reason to lower a sentence. Take steps to learn more about how judges will interpret this concept of aberrant behavior.

How can aberrant behavior influence the federal sentencing guidelines?

Aberrant Behavior & You:

I’m Michael Santos. I learned about the federal prison system and the federal sentencing system while serving 26 years in federal prison. While inside, I studied how the system operates. I wrote scores of books about the federal prison system and how to succeed through it. To write those books, I interviewed more than one thousand people that had been sentenced to federal prison. When I concluded my term, San Francisco State University hired me to teach in the criminal justice program.

Through a combination of personal experience and study, I’ve learned strategies people can use to influence better outcomes at sentencing. Learn federal sentencing guidelines, and factors like aberrant behavior, influence sentencing decisions. By learning more, readers can architect more effective sentence-mitigation strategies.

Although I’m not a lawyer, experience has taught me a great deal. When federal prosecutors bring charges, a sentencing hearing is likely to follow.

Brief History on Sentencing Guidelines

Judges began applying the federal sentencing guidelines soon after my arrest. The Sentencing Reform Act required judges to sentence people who were charged with crimes that occurred after November 1, 1987 in accordance with the guidelines.

Prior to the Sentencing Reform Act, judges had more discretion. They had to abide by statutes. Yet judges could sentence people to terms within a range of those statutes. Those sentencing ranges could span multiple decades. A judge in one part of the country might sentence a person to 20 years for a crime. A judge in a different part of the country might sentence a person to 3 years for a conviction of the same crime.

Those disparities in sentencing led Congress to pass the Sentencing Reform Act (SRA). The SRA led to the U.S. Sentencing Commission. Judges, legislators, scholars, and academics serve on the Commission. Members of the Commission studied sentences that judges imposed in different jurisdictions for similar crimes. Findings from those studies gave members of the Sentencing Commission real insight. They saw a need for more uniformity in sentencing. The U.S. Federal Sentencing Guidelines were the result.

The U.S. Federal Sentencing Guidelines put crimes into different categories. Each crime had a certain severity rating. Those severity ratings started with a Level 1 offense. The most severe federal offense carried a Level 43 sentence. Each of those levels appeared on a vertical scale of the guidelines table.

In addition to the severity level of the offense, the guidelines included a criminal history category. In other words, judges would also consider how many times authorities brought a person into the criminal justice system. If judges or juries found that a person committed crimes in the past, the Criminal History Category would result in “points” which influenced a higher sentencing range. Those Criminal History Points stretched across a horizontal row on the guidelines table.

The Offense Levels and Criminal History Category formed a spreadsheet grid of columns and rows. Federal Probation Officers would conduct Presentence Investigation Reports (PSRs) that judges would rely upon to understand the offender’s guideline range. The individual cells provided the range of sentences that judges could impose. According to members of the U.S. Sentencing Commission, those sentencing ranges represented sentences within “the heartland.”

Downward Departures in the U.S. Federal Sentencing Guidelines

The sentencing ranges provided judges with a starting point. But not every individual fell into the heartland. Some people had unique circumstances. Those individual factors could result in downward departures from the U.S. Federal Sentencing Guidelines.

It’s important to recognize that prosecutors will resist requests for Downward Departures from the Federal Sentencing Guidelines. Consider the “Protect Act,” enacted on April 30, 2003. Former Attorney General John Ashcroft instructed all federal prosecutors to oppose any downward departure if the facts or law didn’t support the departure. The Attorney General also issued a policy that required prosecutors to charge and pursue “the most serious, readily provable offense.”

Such policies influenced the modern era of mass incarceration. Prosecutors want to advance their careers. As such, they oppose departures and they argue for the stiffest possible sentences.

Defense attorneys will fight valiantly in their arguments for downward departures. Yet any individual who faces a criminal charge should work to show why he is worthy of a downward departure. That person may argue for a downward departure from the US Federal Sentencing Guidelines on the basis of aberrant behavior.

Aberrant Behavior and Guidelines

Build a case to show that you’re worthy of mercy. When applicable, show the court that your actions do not reflect the real you. You may see yourself one way. In your view, you are a good person. You may live as a taxpayer, a father, and a husband. You may be a mother, a daughter, and a wife. You may coach children. You may attend church. You may help widows and orphans.

Despite all of those virtues, prosecutors will follow rules and policies mandated by the Department of Justice. As described above, they will oppose any request for a downward departure. Still, the judge has discretion to consider the person’s entire history.

The law holds that judges must consider several factors when they impose a sentence. Those factors include the following statement:

Unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or a to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.

Title 18 USC § 3553 (b)(1)

The above paragraph puts responsibility on a person who has been charged. How can the person argue that the Sentencing Commission did not fully understand the defendant? A person can help by showing that the criminal activity was not a part of his character. Rather, the person should write a story that describes his life. Describe the influences that led to the predicament. Help the judge understand the A-to-Z factors that led to the criminal charge.

If a grand jury charged a person with a wire fraud offense, for example, the defendant should show why the activity was an aberrant act. Show that the activity in the offense did not reflect the person’s character. If the person can make that case, the person advances prospects for a better outcome.

A person who can show that he does not live a criminal lifestyle can move the needle at sentencing. Judges want to learn more about the defendant, and they want to learn from the defendant.

  • What steps are you taking to show that your criminal conviction does not reflect your way of life?
  • In what ways are you anticipating what the prosecutor will object?
  • What steps can you take today to overcome those objections?

Our work at Prison Professors shows all that we’ve learned from interviewing more than 1,000 people who have been sentenced. Further, as speakers, we interact with many federal judges.

For example, I was a keynote speaker at the UC Hastings Law School symposium on federal sentence reform. While there, I interacted with many federal judges, including Judge Charles R. Breyer. At the time, Judge Breyer was the Vice-Chair of the United States Sentencing Commission. At the Robina Institute, I served as a member of the advisory panel, and I served alongside J. Patricia Wilson Smoot, a Commissioner of the United Sentencing Commission.

My interactions with federal judges across the United States, and members of the U.S. Sentencing Commission, provide insight that all defendants should consider. They should not simply rely on the defense attorney. Instead, they should take appropriate steps toward sentence mitigation. They should not talk about wanting the lowest possible sentence. They should invest the time, energy, and resources to understand every possible influence that can advance the argument.

At Prison Professors, we invite you to read through all of our content. Watch our videos. Learn from the many free resources that we provide. Subscribe to us on YouTube so that you can receive updates on when we produce new content. Or subscribe to our newsletter and our posts will come to your email automatically.

If you want expert guidance to assist you with a sentence mitigation effort, contact us today.

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