'Wreaking Extraordinary Destruction' : Defendant’s Irreplaceability as Presumptively Reasonable Grounds for Downward Departure in Sentencing

54 Pages Posted: 30 Nov 2020

See all articles by Jackie Fielding

Jackie Fielding

University of Minnesota Law School

Date Written: May 13, 2020


Despite the media attention afforded to the recent family separation crisis at the southern border of the United States, there is a much more prevalent and common form of family separation: parental incarceration. The United States is the largest incarcerator worldwide, and the surge in the incarceration of women has meant a dramatic increase in the incarceration of parents who are primary caregivers. United States federal sentencing law allows for consideration of family support and caregiving, but such consideration is limited in scope and usage. In the U.S. Federal Sentencing Guidelines, which are not binding but are advisory for federal judges, Section 5H1.6 states that a defendant’s “family ties and responsibilities are not ordinarily relevant” to a downward departure analysis. The current federal sentencing structure in 18 U.S.C. § 3553(a) allows for some consideration of a defendant’s history and characteristics, but judges often employ an analysis similar to the “not ordinarily relevant” inquiry. Unclear parameters for evaluating a defendant’s role as a family supporter and caregiver under these statutes, and inconsistent applications of the “not ordinarily relevant” test, have resulted in disparate outcomes across the country. While numerous solutions have been offered to create better policies, more uniform application, and less unnecessary incarceration of parents, many require too much work for implementation on a mass scale.

This Note advocates for a pattern already employed by several federal courts, in which a defendant’s irreplaceability as a caretaker or provider is the primary factor in a family ties and responsibilities downward departure analysis. By solidifying a presumption that a defendant’s status as an irreplaceable caretaker of dependent(s) is reasonable grounds for downward departure, courts can continue following a path of precedent that works to ensure parents will not be unnecessarily incarcerated, and their children and dependents will not be needlessly separated from their loved ones.

Keywords: family separation, departure, variance, criminal procedure, sentencing, child welfare

Suggested Citation

Fielding, Jackie, 'Wreaking Extraordinary Destruction' : Defendant’s Irreplaceability as Presumptively Reasonable Grounds for Downward Departure in Sentencing (May 13, 2020). Minnesota Law Review, Vol. 104, No. 5, 2020, Available at SSRN: https://ssrn.com/abstract=3706934

Jackie Fielding (Contact Author)

University of Minnesota Law School ( email )

United States

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