Past Violence, Future Danger?: Rethinking Diminished Capacity Departures under Federal Sentencing Guidelines Section 5K2.13

Abstract

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the facts underlying a defendant's offense, including his or her prospect for treatment or rehabilitation, indicate a need to protect the public. In addition, the Sentencing Commission should amend section 5K2.13 explicitly to direct the courts to address issues of public protection beyond a defendant's acts of violence. Language: en