CHAPTER 12 Cultural Issues in Sentencing Marcia G. Shein ‘Synopsis § 12.1 Culture-Related Sentencing Strategies [a}-Strategic Considerations [b]—Criminal Behavior Accepted or Expected in the Defendant's Culture [e}-Stronger Cultural Motive for the Crime {d}—Additional Punishment from the Defendant's Community [e}— Immigration Consequences {}— Defendant's Unusual Behavior at Sentencing § 122 Basic Structure of the Federal Sentencing Guidelines § 123. Downward Departures under the Federal Sentencing Guidelines [al—Overview [b}—The Importance of § SHI.10 [c]—Mental and Emotional Conditions [d}Family Ties and Responsibilities, and Community Ties [e}— Lesser Harms [f]— Coercion and Duress [g}—Immigration Consequences {h}—Combination of Circumstances § 124 Probation/Supervised Release As every criminal defense attomey knows, sentencing is a major part of criminal practice. The sentencing schemes of U.S. jurisdictions vary widely. In some states, sentencing is committed to the unfettered discretion of the sentencing judge or jury, as long as the judge sentences within the statutory range. In other states, voluntary sentencing guidelines guide the sentencing judge's discretion. Finally, in the federal courts, and some states, mandatory sentencing guide- lines govern the judge's sentencing decision. Regardless of the law of sentencing in a jurisdiction, an attorney ‘must seek to explain her client's behavior in light of her background in the way that is most acceptable to the sentencing judge. A defendant's cultural background can provide important information to a sentencing 4§ 12.1[a] CULTURAL ISSUES IN CRIMINAL DEFENSE 122 judge, and justify a lower sentence, whether as a matter of a ‘downward departure under the Federal Sentencing Guidelines or of a sentencing judge’s discretion. This chapter will explore some strate- gies for using cultural factors to advocate a lower sentence, and explain how to apply those general strategies under the Federal Sentencing Guidelines. Counsel should read this chapter in conjunc- tion with Chapter Seven which discusses cultural defenses. That chapter provides a conceptual framework for why culture should play a role in a case and offers numerous examples of how culture can impact a case. § 12.1 Culture-Related Sentencing Strategies [a}Strategic Considerations In many states, criminal defense attorneys and defendants face judges with virtually unbridled sentencing discretion. Similarly, a federal judge has discretion to sentence within the applicable guideline range, which can provide a substantial variation in sentence.* Regardless of the seriousness of the case, it is important to develop a strategy for demonstrating that a client deserves a lower rather than a higher sentence. ‘A host of behavioral patterns prohibited by the American criminal justice system are either encouraged, permitted* or frowned upon but not criminalized in the other cultures.? See United States Sentencing Commission, Guidelines Manual (Nov. 1998) (Getting out table of sentencing ranges). The Sixteenth Edition of A Uniform ‘System of Citation (The Bluebook) does not contain a citation format for the Guidelines. In its Federal Sentencing Guidelines Manual, West Publishing recommends “United States Sentencing Commission, Guidelines Manual, {§ ELI (Nov. 1998)” as the full citation format. It recommends “USSG” as the appropriate short citation form. It also recommends the following abbreviations after the guideline number to designate various types of guideline: ‘p.s." (policy statement); *‘comment. (n.1)" (application note); “comment. (backg'd)’* (back- ‘ground); “intro. comment” (introductory comment); and ““App. C” (appendix), ‘This chapter will follow this recommended convention, For example, a courtship ritual of some legitimacy among the Hmong people of Southeast Asia is the practice of ‘marriage by capture," by which a Hmong ‘man “abducts"” a Hmong woman in a ritual leading to marriage. Despite the fact that the woman may like her suitor, she is expected to protest, making it “arguably difficult for the man to determine whether she truly consents or not.”” Alison Dundes Renteln, A Justification of the Cultural Defense as Partial Excuse,123 CULTURAL ISSUES IN SENTENCING $1214) Individuals from other cultures residing in the United States may find that conduct that they genuinely intended to conform to the normative expectations of their cultures is criminalized. Whenever this situation faces a defense attorney, she should consider raising some form of cultural defense.* Often, however, the courts may not permit such a defense, other factors may counsel in favor of a plea rather than trial, or an attempted defense may not secure an acquittal. Counsel should then turn to the sentencing phase and attempt to show the court that culture should be considered as an important mitigating factor. The conceptual framework allowing for the consideration of cultural issues at sentencing is that “‘{plunishment is only justified when (1) the action is morally condemnable, and (2) the actor is culpable. These determinations require an inquiry into whether, and to what extent, an act is morally condemnable; different cultures may view the same act differently. . . . If pressures beyond the actor's 28, Cal, Rev. L. & Women’s Studies 437, 526 n.19 (1993) {hereinafter Dundes Renteln, Partial Excuse]. In the case of People v. Moua, Case No. 3159720 (Fresno Super. Ct. 1985), the defendant was accused of raping a Hmong woman in Fresno, California. An important factor in assessing the defendant's legal culpability or sentence was the possibilty that he was engaging in the culturally accepted practice of “‘marriage by capture" or “*marriage by abduction.”” See also Dierdre Evans-Pritchard & Alison Dundes Renteln, The Interpretation and Distortion of Culture: a Hmong “Marriage by Capture” Case in Fresno, California, 4 S. Cal Interdsciplinary LJ. 1, 25 (1995) Other ‘practices that are encouraged, permitted or discouraged but not criminalized in other cultures and which have brought their practitioners under the serutiny of the American criminal system include the following: the Southeast Asian folk medicine technique of coining (the massage witha serrated coin of a child's body for the treatment of the flu), see Dundes Renteln, Partial Excuse, supra note 2, at 526 n.18; female genital mutilation, see i. at 484 n.178; and use ‘of force in disciplining a child, see id. at 498 1.210. A cultural defense is a defense asserted by immigrants, refugees, and indigenous people based on their customs or customary law. A successful cultural ‘defense would permit the reduction (and possible elimination) of a charge, with a ‘concomitant reduction in punishment. The rationale behind such a claim is that an individual's behavior is influenced to such a large extent by his or her culture that cither (i the individual simply did not believe that his or her actions contrave any laws (or i) the individual was compelled to act the way he or she di (]- Dundes Renteln, Partial Excuse, supra note 2, at 439; see supra Chapter 7.§ 12.1[a] CULTURAL ISSUES IN CRIMINAL DEFENSE 124 control (i.e., cultural pressures) make his act less than voluntary, the offender is not culpable and his actions may be mitigated.""* Defense counsel presenting mitigation issues based on culture, however, should be extremely well prepared. Often judges will be suspicious of cultural arguments, and if they believe the alleged cultural practice at issue is a mere red herring, the client may suffer.* ‘Thus, counsel should be prepared to establish thoroughly that the cultural practice is genuine and that the defendant’s criminal conduct was influenced by said practice. To the extent possible, counsel should consult with cultural experts,” personnel from the relevant consulate, civic leaders of defendant’s ethnic community, and the defendant's family and friends to confirm these’ issues. The following sections contain examples of circumstances where culture may play a role at sentencing.* While these scenarios are rare, counsel should also keep in mind that cultural background can be used at sentencing in a more general way. For instance, in a case involving a Native American defendant, counsel should consider carefully ‘outlining the harshness of living on a reservation.® Likewise, in a case inyolving a drug “‘mule"” from a border Mexican town, counsel may ‘consider educating the court on the bleak economic prospects that drove the defendant to distribute drugs to support his or her family.%° In smuggling cases involving a female defendant from a culture where women are expected to be subservient to their husbands, counsel should determine whether the defendant may have been operating under this cultural expectation.** "Placido Gomez, The Dilemma of Difference: Race as a Sentencing Factor, 4 Golden Gate U. L. Rey. 357, 361 (1995); see also supra Chapter Seven. See United States v. Khang, 36 F.3d 77, 78 (Sth Cit. 1994) (affirming upward adjustment for obstruction of justice under USSG § 3C1.1 where district court found that defendant lied about cultural reason for bringing opium into the United States). See supra Chapter 7 * This is only a partial lst of examples. Chapter 7 catalogues many examples where cultural isues played a role during the presentation of a defense or in sentencing related issues. see United States v. Big Crow, 898 F.2d 1326, 1332 n3 (8th Cir. 1990). See United States v. Valdez-Gonzalez, 957 F.24 643, 649 (Sth Cit. 1992). *Sce United States v. Gaviria, 804 F. Supp. 476, 481 (ED.N-Y. 1992).2s CULTURAL ISSUES IN SENTENCING § 12.11) [b]—Criminal Behavior Accepted or Expected in the Defendant’s Culture The notion of honor in many societies is radically different from that in the United States. In some closely knit traditional societies, shame may be a profoundly unsettling factor for an individual. An example of how this issue arose at trial is People v. Aphaylath.* In that case, the defendant, a Laotian refugee living in the United States for less than two years, was charged and convicted of murdering his wife, The defendant attempted to establish a defense of extreme emotional disturbance arguing that under Laotian culture his wife’s affections toward another man would have brought “sufficient shame to trigger {his} loss of control.”"*? The defendant also wanted to present the testimony of two experts in Laotian culture to buttress his defense and testify as to the “stress and disorientation encountered by Laotian refugees in attempting to assimilate into American culture.”"** The trial court excluded the testimony of the experts but the appellate ‘court reversed,holding that the expert testimony was admissible to support defendant's emotional stress defense.® Counsel confronted with a similar scenario at sentencing should have an easier time introducing evidence that the defendant should be treated differently than a defendant who committed the same crime but whose culture does not put such a premium on honor and shame. In People v. Chen, the defense persuaded the judge that the defendant's cultural premium on honor led him to kill his wife and consequently he should receive a probationary sentence.** In that case, the defendant was accused of murdering his wife with a hammer after Jeaming of her infidelity. The government initially charged the defendant with first degree murder. The defense presented expert testimony that ‘in traditional Chinese culture, a wife's adultery is proof that her husband has a weak character.’"*” Thus, the defense 12502 N.E2d. 998 (N.Y. 1986). 31d, at 999. ig, $14, **See Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 NM. L. Rev. 101, 119-121 (1997) iscussing People v. Chen, No. 87-7774 (N.Y. Super. CL. Mar. 21, 1989). id. at 120.§ 12.) CULTURAL ISSUES IN CRIMINAL DEFENSE, 126 argued that Mr. Chen became so distraught upon finding out of his wife’s affair that he could not form the requisite intent for premeditat- ed murder." Based on the expert testimony, the judge found the defendant guilty of the reduced charge of second degree manslaughter and sentenced the defendant to five years probation. The judge reasoned that the defendant was “‘driven to violence by traditional Chinese values about adultery and loss of manhood.’’# Similarly, some cultures consider certain gestures so insulting that violence is appropriate to defend the insulted persons’ honor. An example is the case of Pongsak Trakulrat, a Thai singer at a restaurant in Los Angeles.” While singing, Mr. Trakulrat became enraged at an individual in the audience and shot him to death. According to Professor Dundes Renteln, the apparent reason for the killing was the fact that man had put up his feet in the table, ‘'so that his soles were pointing at [the defendant] . . . This gesture is considered to be extremely derogatory in Thai culture.”# In that case, the parties considered the cultural issue in plea bargaining, presumably giving the defendant the opportunity of securing a better sentence than he would have received if the cultural issue had not been placed on the table 2? [c}-Stronger Cultural Motive for the Crime A classic example of this scenario is People v. Kimura2* The defendant in that case opted to commit oyako-shinju, or parent-child suicide, after discovering that her husband was having an affair. Ms. Kimura attempted to commit oyako-shinju by walking into the ocean with her two children. While passers-by rescued Ms, Kimura, her children drowned. She was later charged with first-degree murder. iduals who are attempting to “‘avoid an otherwise unacceptable social situation’ sometimes resort to this practice in Japan While 1a. 8/4, Legal commentators criticized the expert testimony in Chen as being an antiquated depiction of Chinese culture. dat 123. *Dundes Renteln, Partial Excuse, supra note 2, at $26 n.150. m4, ce id. * Dundes Renteln, Partial Excuse, supra note 2, at 463 (discussing People v. Kimura, Case No. A.091133 (Los Angeles Super. Ct. 1985). See id. at 463, Professor Dundes Renteln states that approximately 500 cases of oyako-shinju arc reported every year in Japan. See id. at 526, n.92 (citing27 CULTURAL ISSUES IN SENTENCING § 1241) this practice is illegal in Japan, the parent who survives is rarely punished? The rationale behind oyako-shinju is that “it is more cruel to leave the children behind with no one to look after them than it is for the mother to take them with her to the afterlife.’"* This practice is so culturally significant that the Japanese American community gathered 25,000 signatures petitioning the Los Angeles District Attorney's office not to prosecute Kimura.?” Based on the testimony of a series of experts who testified to Ms. Kimura’s mental state and the cultural significance of oyako-shi the government offered her a plea to a reduced charge of voluntary ‘manslaughter. She received a sentence of one year in the county jail which she had already completed, followed by five years of probation including psychiatric counseling In the Kimura case, “‘cultural evidence gave both the judge and the prosecutor a better understand- ing of [the defendant's] world and provided context for her actions." [d]—Additional Punishment from the Defendant's ‘Community Sometimes a defendant's culture has traditional methods to deal with crime. Counsel may argue that the court should give the defendant a lesser sentence and allow the defendant's community to administer its traditional punishment. In United States v. Fulton, the defendant, an S’Klallam Indian, plead guilty to abusive sexual contact with a minor on an Indian reservation. At sentencing, he requested a downward departure because, among other things, his tribe needed to “enforce its culturally based sexual abuse program.’*** The district Gordon Dillow, When Legal System and Culture Collide, L.A. Herald Examiner, Feb. 18, 1985, at A7). Maura Dolan, Two Cultures Collide Over Act of Despair; Mother Facing Charges in Ceremonial Drowning, L.A. Times, Feb 24, 1985, at 3. Dundes Rentcln, Partial Excuse, supra note 2, at 463. See id. See id, Kim, supra note 16, a 118. 3987 F.2d 631, 633 (Sth Cir. 1993) 1d, at 362, 364.§ 124le] CULTURAL ISSUES IN CRIMINAL DEFENSE, 128 court held that while it did have the power to depart, the defendant ‘made an insufficient showing that he merited a departure. [e}—Immigration Consequences The prospect of deportation carries a panoply of harsh repercussions that most criminal defendants do not experience. Counsel should paint a picture at sentencing describing the hurdles these defendants will face. For instance, typically individuals with INS holds are incarcerated in facilities that are medium security or above; often they ‘cannot participate in educational or training programs in which other inmates can participate; often they are separated from families in the United States and may not even have family in their country of origin; sometimes they are deported to countries suffering from severe ‘economic depression or political upheaval. Section 12.3[i] discusses the availability of downward departures in the federal system based on immigration consequences.* Counsel should keep in mind, however, that even if she practices in a federal jurisdiction in which downward departures are not granted based on immigration consequences, she should delineate the harsh conditions of deportation to support other grounds for downward departures or to obtain the low end of the Guidelines. Likewise, defense counsel arguing at the state level should detail the consequences of deportation for the court, in the hopes that it will persuade the court to impose a lower sentence. [f]Defendant’s Unusual Behavior at Sentencing Defense counsel should “‘alert the court to cultural background differences that might explain surprising, unusual, or incomprehensi- ble behavior or demeanor by the defendant.”"®* Otherwise, the court or 32/4, at 364, The court of appeals affirmed. Id. See United States v. Ortega-Mendoza, 981 F. Supp. 694, 696 (D.C. 1997) (granting a downward departure because defendant's status as a deportable alien disqualified him from being assigned to a medium security facility and Participating in carly release programs). Downward departures in illegal reentry after deportation cases (8 U.S.C. § 1326) are discussed in depth in § 10.4, supra. Richard W. Cole & Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Siages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 226 (1997).129 CULTURAL ISSUES IN SENTENCING $22 probation officer may perceive a defendant's culturally expected behavior as disrespect or lack of contrition. In People v. Superior Court, a voluntary manslaughter case, the defendant failed to verbalize hher remorse to the Probation Department.* Fortunately for the defendant, the trial court granted a probationary sentence, finding that the failure to verbalize remorse was “‘more likely a result of cultural and language barriers rather than an indication of a lack of true remorse.’’?” Counsel who is not sensitive to her client’s culturally rooted actions that clash with the expectation of the court or probation officer, risks alienating the court and exposing her client to more severe punishment. § 12.2 Basic Structure of the Federal Sentencing Guidelines As part of the Sentencing Reform Act of 1984, Congress created the United States Sentencing Commission, an independent agency of the judicial branch, to establish the sentencing policies and practices for the federal system. The Commission viewed the goals of the Sentencing Reform Act as honesty, uniformity, and proportionality in sentencing. The Sentencing Commission developed the Federal Sentencing Guidelines, which are presented in numbered chapters, divided into alphabetical parts. The parts are divided into subparts and individual guidelines. Three numbers and a letter identify each guideline corresponding to the chapter, part, subpart and individual guideline. For example, USSG § 2B1.1 identifies the first guideline in the first subpart in Part B of Chapter Two. The Guidelines include Policy Statements of the Commission, which are similarly identified. At the end of each Guideline or Policy Statement, the Sentencing Commission has provided a “Commentary,” which serves a number of purposes. The commentary is binding on courts unless it violates the Constitution or federal statute or it conflicts with the text of the Guideline."® First, through “Application Notes,” the Commission *People v. Supetior Cour, 7 Cal. Rptr. 2d 177, 181 (Cal. Ct App. 1992). 1d. %See Title Il of the Comprehensive Crime Control Act of 1984, See USSG § 1A3, ps. “See Stinson v. United States, 508 US. 36, 38 (1993); United States v. Garecht, 183 F.3d 671, 674 (ith Cit. 1999); United States v. Campbell, 168 F.3d 263,269 (th Cr. 1999); United States v. Brooks, 161 F.3d 1240, 1248 (10h Cit. 1998), cert. denied, 1999 U.S. LEXIS $955 (1999; United States v. Williams,