Mitigation paradigms: what reduces criminal sentences, explanation or excuse?

• Author: Meyer, Chance

The sign over the immigration counter at the airport in Bangkok reads "No Sex Tourism."

Rightfully so. Southeast Asia is a favorite destination of Westerners who travel abroad to have sex with minors. Congress has criminalized activities related to sex tourism, (1) but it is a problem difficult to eradicate. Some foreign governments have been known to look the other way in order to keep much-needed tourism revenues rolling in. (2) Aid, regrettably, the industry innovates to maintain demand. For instance, when fear of sexually transmitted diseases grew, it began marketing virgins, younger and younger. (3) Of course, maintaining demand is no great challenge. Pedophilia is a "compulsion, an intense arousal and drive" to engage in sexual activity with age-inappropriate partners. (4) It needs no help creating desire, only opportunity. For these and other reasons, sex tourism remains big business.

The sign--"No Sex Tourism"--is an ill thing to ponder while waiting in a crowded room of travelers. When I noticed the sign, during a trip last year with my wife, it brought to mind a grave thought.

I thought of the case of William Irey.

Anyone familiar with the case likely would. Irey, an Orlando businessperson, was so avid a sex tourist in Southeast Asia (5) that he might as well have hung the sign himself. But that is not the only reason his case is memorable.

Irey's case reveals something very important about criminal sentencing, something that dictates the outcomes of many cases, but that also usually stays far behind the scenes and is not discussed in everyday practice. Ire/s case shows that there are two opposing views as to the fundamental nature and purpose of mitigating evidence: explanation and excuse. These opposing views--these paradigms of mitigation--vie to influence cases. They lead to different sentences on the same facts. But, because they both square with the law, or at least stay out of its way, the law has been content so far to ignore their competing influences, for the most part. This all takes a bit of explaining, so first things first.

In the criminal law context, mitigating evidence is anything that weighs in favor of a lesser punishment. (6) The defense presents it to the sentencing court. The court weighs the mitigating evidence against the prosecution's evidence, which shows the ways in which the defendant's crime was an especially bad one. This is the balance of sentencing.

Sometimes mitigating evidence is mental illness. (7) Sometimes it is the fact that the defendant was abused as a child. (8) Sometimes it is a tearful plea for mercy from mom, though that seldom tips the scale. (9)

In federal sentencing, mitigating evidence is introduced through 18 U.S.C. [section]3553(a)(l), which asks courts to consider "the history and characteristics of the defendant" as a sentencing factor. That provision may seem rather modest, though it is anything but. It comes from capital sentencing, where it has long been a constitutional imperative to consider the offender personally before sentencing him to death, due to "the fundamental respect for humanity underlying the Eighth Amendment." (10) When recognizing that imperative in 1976, the U.S. Supreme Court described such individualized sentencing as "a progressive and humanizing development" and "simply enlightened policy," even when not constitutionally required. (11) But still, in noncapital sentencing, things might have gone another way. It is no minor thing for Congress to allow for consideration of each defendant's unique flaws and frailties. Along the same lines, for noncapital felonies in Florida courts, mitigating considerations are provided by statute. (12) There, too, non-individualized sentencing is repudiated. (13) So, state or federal, capital or noncapital, in one way or another, criminal attorneys and judges across Florida end up dealing in a currency of mitigation.

The defense pays it in. The prosecution sets it off. And the court tallies it up.

The consequences of this process can be huge. Mitigation can mean life imprisonment rather than death; a considerably lesser term of imprisonment than is recommended by the state or federal sentencing guidelines; or an alternative to imprisonment, like probation. So how we think about mitigation is important, particularly if we disagree as to what it is. Yet, judges and attorneys tend to favor one of two opposing views.

Some tend to think of mitigation primarily as explanation--an offering of evidence that helps the sentencer understand why the defendant came to do what he did. For them, the biological, psychological, and experiential influences over the defendant's behavior provide reasons to find him less culpable and less deserving of punishment. Perhaps, the breaks of life eased along his choice to commit a wrongful act. Perhaps, he was driven by mental illness. And perhaps that, rather than excusing culpability, shows there is less there to excuse.

Others tend to think of mitigation primarily as excuse--a bid to avoid an otherwise deserved punishment, by asking for something akin to leniency. For them, the things in the defendant's life that drove him or her toward a wrongful act do not lessen culpability. Instead, they offer reasons to consider forgiving it, to some extent. Perhaps, even though some of us have had worse experiences in life or have poorer mental health, we must still start from the same point of responsibility under the law. (14) Perhaps a defendant that was dealt a tough hand in life deserves mercy, rather than to be viewed as less culpable.

Courts, prosecutors, defense attorneys, scholars, commentators--even Black's Law Dictionary--struggle with which view they favor. Sometimes they do so expressly, sometimes implicitly, sometimes as a matter of vague intuition, not even aware that a dichotomy between explanation and excuse is somewhere at the heart of their unsettledness over how to treat mitigating evidence. But which view they ultimately come to prefer matters greatly. For practitioners, it determines the paradigm of attitudes, concerns, and valuations within which they will contextualize, quantify, and weigh sentencing evidence.

It determines what the currency is worth to them.

And this is where Irey comes in. Irey's conduct was bloodcurdling. Judges of both the U.S. District Court for the Middle District of Florida and the U.S. Court of Appeals for the 11th Circuit felt strongly about his punishment, but they disagreed as to what that punishment should be because they took opposing views of his mitigating evidence. The gravity of the crime inspired some rather candid statements about how mitigation should be understood, so the circumstances were just right to pull back the curtain and allow for a glimpse at mitigation's true face. Only, as it turns out, it has two.

United States v. Irey, 612 F.3d 1160 (11th Cir. 2010), reflects vividly that there are indeed two opposing conceptions of mitigation at work in criminal sentencing, and they can lead to very different outcomes.

Thus, Irey can help us better understand our own thoughts and deepest intuitions about mitigation. For those who already hold well-formed convictions, it can test them, by pitting them against an extreme set of facts. If we ask ourselves which view of Irey's mitigating evidence we tend to favor, one of mitigation's two faces should come into focus for each of us. So let us look back and ask what sentence we think Irey deserved.

Given Irey's abhorrent conduct, it may be difficult to consider his mitigating evidence earnestly--to do him that decency. It is not easy to go looking for reasons to lessen the punishment of a sex tourist who has raped children, but the law requires no less. The law aspires to a higher standard of human decency than wrongdoers show their victims. Mitigation must have its moment in sentencing, no matter how dreadful the crime. The law requires sentencers to try to understand, as best they can, people who do terrible things, rather than simply chalking it up to evil, taking retribution, and being done with it.

Thankfully, we will only be theoretically hefting the heavy burden that judges and attorneys routinely bear in the practice of sentencing, with lives hanging in the balance. So, we can set out with only our sensibilities at stake, in search of that ineffable thing--the right sentence.

Disagreement Regarding Explanation and Excuse in Mitigation Theory

I have asserted that criminal lawyers of all sorts and stations--whether they know it or not--struggle with and disagree over whether mitigation is more about explanation or excuse. That assertion requires some proof, to demonstrate that there is indeed a problem to be addressed here, before I proceed to what Irey can teach us about it.

On the one hand, mitigating circumstances have been defined in a way that "begins by telling us what they are not: ... [an] excuse for the crime." (15) They were once even defined by Black's as anything that will "change the perception of why the offense occurred," (16) which strongly favored a view of mitigation...