"Give me a break! I couldn't help myself!"? Rejecting volitional impairment as a basis for departure under Federal Sentencing Guidelines Section 5K2.13.

AuthorPelayo, Carlos M.


Child abusers, compulsive gamblers, kleptomaniacs, pedophiles, and others who know they are breaking the law but are unable to resist their impulses may get a break if they are sentenced in federal court. This is the result of a 1997 Third Circuit decision in which the court held that a defendant's "volitional impairment" may justify a reduction in sentencing, even if the defendant knew what she was doing, and knew that it was wrong.(1) More specifically, the court ruled that a defendant's lack of self-control could serve as an independent basis for downward departure from the Federal Sentencing Guidelines (the "Guidelines") pursuant to section 5K2.13, which authorizes departures due to reduced mental capacity.(2) As of November 1, 1998, the U. S. Sentencing Commission (the "Commission") officially endorsed this approach.(3)

Consider the facts of the Third Circuit case. Kenneth McBroom,(4) a practicing attorney, pled guilty to, and was convicted of, one count of possession of child pornography.(5) McBroom had access to a wealth of pornographic images from the Internet, which he would download and store for his personal collection.(6) About one month prior to the execution of the search warrant for his home that ultimately led to his arrest, McBroom learned that his on-line activities were under investigation by the FBI; yet, he did not cease or even curb his conduct.(7)

Following the entry of his plea, McBroom admitted that he fully understood the moral and legal implications of his activities at the time he engaged in them.(8) Nevertheless, he moved in federal district court for a downward departure from his mandated sentence on the theory that he was volitionally impaired and therefore could not control himself.(9) Reasoning that a departure pursuant to section 5K2.13 is unavailable absent any indication that the defendant was unable to process information or to reason,(10) the district court denied the motion.(11) On appeal, McBroom argued that the sentencing judge took too narrow a view of that section and thereby improperly excluded certain individuals who, although able to absorb information in the usual way and to exercise the power of reason, are nevertheless incapable of controlling their behavior and conforming to the law.(12) The Third Circuit agreed.(13)

The McBroom decision, and the wholesale endorsement of its logic by the Commission,(14) are significant events because they raise many important questions that have not been explored adequately within the context of federal sentencing: Given that volitional impairment is not considered for purposes of an affirmative insanity defense in federal cases,(15) are there reasons to preclude it from being a factor in sentencing? Would allowing section 5K2.13 departures based on volitional impairment advance or hinder Congress's objectives in promulgating the Guidelines? Could such departures be justified under any moral theory of punishment or responsibility? If volitional impairment should not be a basis for section 5K2.13 departures, what alternatives are available in cases like McBroom? This Comment addresses these questions and others, including the most important and difficult question of all: What does it really mean to say that someone is volitionally impaired?

This Comment argues that it is incorrect to base section 5K2.13 departures on a defendant's volitional impairment. Most cases associated with volitional impairment, when properly analyzed, actually involve a perfectly functioning will and voluntary action. As a result, as long as the defendant is not irrational, unmitigated punishment is morally appropriate. Furthermore, allowing departures based on volitional impairment would frustrate Congress's objectives for the Guidelines, especially the objective of nationwide uniformity in sentencing. In light of these concerns, a better approach would be to allow section 5K2.13 departures only under the traditional standard for reduced mental capacity, namely, when the defendant lacks the ability to reason and to distinguish right from wrong.

Part I summarizes the debate over volitional impairment within the context where it first gained national prominence--the federal insanity defense. Part II discusses the goals of federal sentencing generally and explores the extent to which considering volitional impairment as a factor for section 5K2.13 departures is compatible with these goals. Part III clarifies several major misconceptions regarding volitional impairment and develops a clearer understanding of what it truly means to say that one is "out-of-control," or volitionally impaired. Finally, Part IV concludes by rejecting volitional impairment as a basis for section 5K2.13 departures. This Part proposes that, as long as defendants are able to rationally reflect upon their conduct, it is appropriate and necessary that they be given unmitigated sentences.


    The concept of volitional impairment first gained prominence in the law as a key aspect of the alternative standard to the M'Naghten test for legal insanity. In that context, where its vices and virtues have been robustly debated, volitional impairment was ultimately rejected by the federal courts. Any inquiry into potentially valid grounds for such departures necessarily inherits much from this prior debate because departures pursuant to section 5K2.13 are intended to mitigate for a defendant's reduced mental capacity. Accordingly, a brief review of the history of the insanity defense in the federal courts is a logical place to begin to determine the proper role for volitional impairment in federal sentencing.

    The classic substantive test for insanity was established in 1843 in Daniel M'Naghten's Case.(16) Under M'Naghten, legal insanity involves a disturbance or disease of the mind whereby the defendant did not appreciate the "nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."(17)Under this well-established standard,(18) a defendant's lack of self-control is completely irrelevant to the determination of legal insanity, because only the cognitive ability to distinguish right from wrong matters.

    Although it remains vibrant today, the M'Naghten test has endured much criticism.(19) Some critics have observed, for example, that the human psyche is an "'integrated entity of cognition and affect,'" and that other symptoms besides the inability to reason might constitute reduced mental capacity.(20) Thus, in 1955, the American Law Institute (the "ALI") formulated a novel test for insanity that seemed to address some of M'Naghten's major perceived weaknesses. This new standard retained the cognitive analysis prescribed under M'Naghten, but it also added a so-called volitional component which focused on the defendant's ability to control her behavior.(21)

    The ALI's new approach was incorporated into the Model Penal Code (the "MPC"). In jurisdictions that adopted the MPC, a defendant was not responsible by reason of insanity if, "as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law."(22) Thus, an affirmative insanity defense could now be based either on the inability to reason, or, alternatively, on some inability to control one's actions.

    The MPC test initially represented a viable alternative to the M'Naghten test. When a jury acquitted John W. Hinckley, Jr. in 1982 on the grounds of insanity,(23) however, many jurisdictions balked.(24) A period of intense nationwide pressure to limit the scope of the insanity defense ensued,(25) eventually the MPC test came under serious scrutiny.(26) In 1984, the Fifth Circuit concluded that, for purposes of pleading the insanity defense to federal offenses, volitional impairment should be completely disregarded. The court reasoned that the volitional prong of the MPC standard was inapplicable because "a majority of psychiatrists now believe that they do not possess sufficient accurate scientific bases for measuring a person's capacity for self-control or for calibrating the impairment of that capacity."(27)

    Ultimately, Congress agreed with the Fifth Circuit. In 1984, it enacted the Insanity Defense Reform Act (the "IDRA"),(28) which established the M'Naghten, or cognitive ability test, as the exclusive standard for legal insanity in federal cases. Today, if charged with a federal crime, a defendant may not raise volitional impairment as part of an affirmative insanity defense during the guilt phase of her trial.


    Although discarded for the purposes of a federal insanity defense, it does not necessarily follow that volitional impairment should play no role in sentencing.(29) Instead, whether a defendant's ability to control her behavior should factor into sentencing decisions depends primarily upon Congress's purposes in enacting the Guidelines.

    1. The Role of Sentencing and Departures Generally

      The Guidelines are the result of over twenty years of intense debate concerning the best system for punishing federal offenders.(30) Prior to the Guidelines, an indeterminate sentencing and parole structure existed for most of the century that allowed judges broad discretion to tailor sentences based on the specific circumstances of each offender. Indeterminate sentencing was based primarily on the desire to rehabilitate offenders, thereby minimizing the risks of renewed criminal activity upon their unsupervised returns to society.

      However, indeterminate sentencing had one major drawback. The system created significant disparities in federal sentencing practices nationwide.(31) In 1984, Congress passed the Sentencing Reform Act ("SRA")(32) in response to this prevalent concern...

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