Deterrence Case Analysis

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The decision is noteworthy for several of the holdings, but the most noteworthy is the discussion of "marginal deterrence" as grounds for imposing a sentence below the guideline range.

Since the issuance of U.S. v. Booker, one of the biggest questions has been how appellate courts are going to review district court decisions under the "reasonableness standard." Many have speculated that any sentence within the guideline range must be either reasonable per se, or at least presumptively reasonable.

Thus, many will be stunned that, in its first opportunity to express dicta on what "reasonableness" may mean, the Seventh Circuit has suggested that a sentence within the guidelines may be excessive, and has done so based on a concept as little understood as "marginal deterrence."

Needless to say, under mandatory federal sentencing guidelines, "marginal deterrence" was not a permissible, much less approved, ground for imposing a sentence below the guideline range. Now that it is allowed, criminal defense attorneys and prosecutors would be wise to learn what it is before they go into court and ask a court to use the concept to fashion a sentence.

The term can be used in at least three different ways. In one sense, "marginal" merely means "little" — so little that it is not worth imposing a particular penalty, because so little wrongdoing will be deterred.

The Seventh Circuit used the term “marginal deterrence,” in this sense in U.S. v. Brimah, 214 F.3d 854, 858-859 (7th Cir. 2002). The issue in Brimah was whether evidence that was unlawfully seized, and thus inadmissible at trial, could nevertheless be used at sentencing in determining the defendant’s relevant conduct.

The court held that it could, concluding that extending the exclusionary rule to sentencing would deter no wrongdoing (or so little that it would not justify the costs).

The possibility of having illegally obtained evidence excluded from trial is sufficient incentive for police officers to follow the law, and thus, the added sanction of also excluding the evidence from a sentencing, should the defendant be convicted anyway, is so small that any added deterrence of unlawful searches is "marginal."

In terms of punishment for crimes, suppose the penalty for homicide is life in prison without parole. A legislator proposes that, to deter murder, the penalty should be amended to life in prison without parole, plus a fine. The proposal is silly, because anyone not deterred from committing murder by the possibility of life without parole, is not going to be deterred by the possibility of an additional fine. The additional deterrence factor of the fine is "marginal."

"Marginal deterrence," as that term is usually used by economists, however, refers to a different concept, best described by the court in Lust v. Sealy, Inc., 383 F.3d 580, 591 (7th Cir. 2004), in which the court reduced a punitive damage award from the maximum ($1 million) to $150,000, because the discrimination was "relatively minor," and thus, imposing the maximum would undermine the goal of deterrence.

The court wrote: "If Sealy must pay the maximum damages for a relatively minor discriminatory act, it has no monetary disincentive (setting aside liability for back pay) to escalate minor into major discrimination. It’s as if the punishment for robbery were death; then a robber would be more inclined to kill his victim in order to eliminate a witness and thus reduce the probability of being caught and punished, because if the murdering robber were caught he wouldn’t be punished any more severely than if he had spared his victim."

Besides the law review articles cited by the court in its discussion of marginal deterrence, another good discussion is found in "Hanged for a Sheep — the Economics of Marginal Deterrence," David Friedman & William Sjostrom, Journal of Legal Studies, vol. XII (June, 1993).

In the case at bar, the court uses it more broadly — that the harshest sentences should be reserved for the most culpable offenders — without really discussing the interrelation between relative punishments and deterrence.

The court suggests that the sentence in this case is too high, because it is the same sentence that would be imposed on a far more culpable pedophile — one who inflicts greater harm on his victim, or who has many different victims.

Newsom surreptitiously filmed two child victims while they slept or were undressed; therefore, he should not be punished as severely as a defendant who compels a dozen children to participate in sex acts against their will, in the manufacturing of traditional child pornography.

This may be sound reasoning, but the case does not fit within the classical paradigm of "marginal deterrence," as used by the court in the robbery hypothetical.

One who manufactures traditional child pornography has a far greater probability of being caught and punished than one who surreptitiously films an unaware victim.

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Deterrence comes not just in the form of punishment, but also the probability of punishment. Thus, crimin
als are already deterred from escalating their crime from Newsom’s to something worse.

In contrast, when a robber kills his victim, he increases his harm to the victim, and decreases his likelihood of punishment. Therefore, marginal deterrence requires that the punishment for robbery must be less than for murder.

So, imposing a lower sentence in the case at bar, based on the relative culpability of the defendant, fits more squarely into 18 U.S.C. 3553(a)(1) —"the nature and circumstances of the offense and the history and characteristics of the defendant" — than it does into marginal deterrence analysis.

Thus, while the court approves "marginal deterrence" as a reason for imposing a sentence below the guideline range even when the case doesn’t fit within the archetype example, attorneys seeking to use that as a reason in future cases need to be familiar with the intricacies of the phrase, nevertheless.

– David Ziemer

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David Ziemer can be reached by email.