Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Downward Departure and Bulimia

A curious reader wonders whether bulimia could be used as a ground for downward departure. It’s an interesting question.

Let me first say that, any ideas expressed here are not legal advice for any particular case. I am not retained in any case; I have no attorney-client relationship in any such case; I might not be admitted to practice in any particular state where any particular person is being sentenced. Any ideas expressed relate to the general, academic question of whether a person with bulimia could seek a downward departure. I do not represent any such person (and this post, of course, is not an agreement to represent any such person).

As for the question, my thoughts on the subject are:

(1) Bulimia is not a prohibited ground. It’s not prohibited under the guidelines, and (to my knowledge) is not prohibited under case law. So, an argument could be made for downward departure.

(2) Bulimia is also not an explicitly accepted or encouraged ground.

What this means is that any argument would try to establish that a bulimic’s particular case is like an established ground. As I see it, such an argument could include:

(1) Physical, mental and emotional condition can be taken into account if “extraordinary”. (This ground can be hard to establish, and may require testimony by doctor, psychiatrist, etc.)

(2) Extreme vulnerability to prison circumstances. While the cases on this ground mostly involve homosexuals, HIV positive people, or former police officers — people more likely to be abused in prison — an argument could be made that bulimia creates similar vulnerability.

(3) Bulimia often results from childhood abuse, and some courts have allowed downward departure for cases of childhood abuse.

(4) In addition, as with any case, any other applicable grounds for any particular defendant (not necessarily related to bulimia) should be argued as long as there are facts to support them (for example, aberrant behavior, duress, minimal role, or extreme family circumstances, etc.).

(Case law supporting each of these grounds can be found in the Downward Departure Handbook).

Such are my thoughts on the matter. If any readers agree, disagree, or have anything to add, please let me know.

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April 26, 2003 - Posted by | Uncategorized

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