Is HIV 'extraordinary'?

AuthorHansell, Jordan B.

The Sentencing Reform Act of 1984 (the "Act")(1) attempts to reduce inconsistencies in the sentences of defendants convicted of comparable crimes.(2) The Act created a Sentencing Commission (the "Commission") and authorized it to promulgate a set of sentencing guidelines to steer judicial decisionmaking.(3) To fulfill this mandate, the Commission drafted the Federal Sentencing Guidelines (the "Guidelines"), which Congress enacted in 1987.(4)

Although Congress wanted to eliminate sentencing disparities, it also wanted to allow some degree of individualized sentencing.(5) To achieve the correct balance, the Commission created three categories of characteristics: those a court must consider in sentencing each defendant;(6) those a court must never consider;(7) and those that, while normally irrelevant to sentencing decisions, a court may consider when circumstances warrant.(8) Among the characteristics usually inapposite to a sentencing court's decision is the physical condition of the defendant -- a consideration mentioned in section 5H1.4 of the Guidelines.(9) Only when the defendant's condition represents an "extraordinary physical impairment"(10) may the sentencing court grant a downward departure or consider a sentence other than imprisonment.(11)

Courts have been unable to agree on the question of whether HIV-positive status, HIV with an attending medical complication, or AIDS should count as extraordinary physical impairments warranting a downward departure.(12) Unfortunately, this problem will not fad6 away. Experts predict that the number of HIV infections will increase in the coming years,(13) disproportionately affecting criminal populations.(14) This Note argues that HIV-positive status, HIV with an attending medical complication, and AIDS should not automatically qualify as extraordinary physical impairments. Rather, the sentencing court should make findings of fact to determine whether the individual defendant suffers from a related complication -- either before or after any explicit application of the AIDS label -- such that the related complication qualifies him for a downward departure.(15)

To support this claim, this Note proceeds in two steps. Part I provides a systematic test for courts to consider in determining whether an extraordinary physical impairment exists. It then examines the legislative history and language of the Act, the language of the Guidelines, and several cases that have addressed this issue. Using these sources, this Part identifies four relevant factors that should guide the extraordinary physical impairment determination.(16)

Part II applies this four-factor test to HIV and argues that one factor, the severity and predictability factor, proves determinative in assessing the applicability of HIV status to downward departures. It then posits that the remaining factors of the general test enunciated in Part I all point toward declaring HIV ordinary.


This Part suggests a test for sentencing courts to use in deciding whether a defendant suffers from an extraordinary physical impairment. It considers the statutory language and history of the Sentencing Reform Act, the language of the Guidelines, and several cases in compiling a comprehensive list of factors a court should consider.(17) It concludes that there are four(18) relevant factors: (1) whether the condition severely and predictably impairs the defendant; (2) whether the prison system is able to provide necessary medical care; (3) whether incarceration will worsen the defendant's condition; and (4) whether the condition exposes the defendant to victimization.(19)

A. The Severe and Predictable Condition

Section I.A argues that a court should consider whether the defendant's condition severely impairs her in a predictable manner. Specifically, section I.A.1 contends that congressional discussion of the Act's goals and of the physical condition category supports the severity requirement. Section I.A.2 then maintains that Congress's desire for fairness and rationality supports requiring a predictable condition.

  1. The Severity Requirement

    Congress intended for only severe physical conditions to play a role in departure decisions. Congress first evinced this intention by focusing the sentencing decision on a defendant's criminal characteristics, as opposed to personal traits.(20) This choice is evident in Congress's enunciation of the four purposes of sentencing:(21)

    1) to reflect the seriousness of the offense, to promote respect for the

    law, and to provide just punishment for the offense; 2) to afford

    adequate deterrence to criminal conduct; 3) to protect the public from

    further crimes of the defendant; and, 4) to provide the defendant with

    the needed educational or vocational training, medical care, or other

    correctional treatment in the most effective manner.(22)

    Notably, the first three goals of sentencing have nothing to do with the defendant's personal characteristics; they concentrate either on punishment or deterrence. Only with respect to the fourth goal -- rehabilitation -- might one argue that Congress considered the defendant's personal characteristics -- that is, those characteristics that would make the defendant either amenable or not amenable to certain rehabilitative efforts. The rehabilitative goal, however, has fallen out of favor, as evidenced by section 994(k) of the Act. In it, Congress instructed the Commission to create Guidelines that "reflect the inappropriateness" of sentencing a defendant for the purpose of rehabilitation.(23)

    One also finds Congress's intent to downplay a defendant's personal characteristics in its description of section 3553(a)(1), which calls on the sentencing judge to consider the defendant's history and characteristics.(24) Congress stated, "[w]ith respect to the history and characteristics of the defendant, the judge must consider such matters as the criminal history of the defendant, as well as the nature and effect of any previous criminal sanctions."(25) Any similar directive with respect to a defendant's personal characteristics is conspicuously absent from Congress's discussion.

    Congress's limitation of the consideration of a defendant's personal characteristics in the context of the penal system's goals suggests that consideration of personal characteristics should be limited in sentencing decisions as well. Because physical condition is a personal characteristic, one may assume that Congress preferred that courts take the same overall approach with respect to it as they do toward personal characteristics in general.

    A given personal characteristic does become relevant to a defendant's sentence when it is severe.(26) Two arguments support this position. First, Congress used the analogous word "serious" in describing conditions that should qualify as extraordinary physical impairments.(27) In describing 28 U.S.C. [sections] 994(d)(5),(28) the provision that instructs the Commission to consider physical condition, Congress stated that under certain circumstances involving a "particularly serious illness," a court may give probation to a defendant who otherwise would go to prison.(29)

    Second, Congress intimated a severity requirement in its parallel treatment of downward departures for physical condition and sentence modifications.(30) These two provisions address similar issues, but at different stages in the penal process. Downward departures address any conditions present at the time of sentencing, while modifications address conditions that have developed or progressed while the inmate was in prison. Congress declared that a severe illness would suffice for both determinations.(31) To give courts guidance, Congress cited terminal cancer, an obviously severe example.(32)

    The Sentencing Commission followed through on Congress's directives and incorporated them into the Guidelines. The Commission emphasized criminal, rather than personal, characteristics.(33) The Commission also adopted almost verbatim Congress's language limiting relevant physical conditions to those that are severe.(34)

    First, the Commission created guidelines that define "the defendant strictly in criminal terms, not personal ones."(35) Consequently, personal characteristics, as a general category, ordinarily are irrelevant to a sentencing court's decision.(36) Personal characteristics, such as physical condition, become part of the sentencing consideration only when they are extraordinary in nature.(37)

    The Guidelines provide little room for a court to consider the defendant's personal traits in sentencing.(38) Specifically, in Part H of Chapter 5, the Sentencing Commission outlined the role criminal and personal characteristics are to play in a defendant's sentence.(39) The Commission stated that only the defendant's role in the offense,(40) criminal history,(41) and dependence on criminal activity for livelihood(42) are always relevant to a court's sentencing decision. Each of these considerations pertains to a defendant's criminal attributes.

    Second, and more important, the Commission adopted Congress's language in discussing the specific role of extraordinary physical impairments. Section 5H1.4 provides that the defendant's condition must be both serious and incapacitating to justify a departure. In defining which physical conditions could constitute grounds for a departure, section 5H1.4 uses the word "impairment" and gives as an example a "seriously infirm defendant."(43) The word "impairment" alone requires that there be some reduction in the defendant's ability to function. If this were not the case, and the defendant could function normally despite his condition, there would be no reason for a court to declare his case extraordinary and section 5H1.4 would not apply. In addition, the Commission's use of the word "seriously" indicates that it took to heart Congress's limitation on the applicability of nonsevere...

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