Abstract
INTRODUCTION The Federal Sentencing Guidelines were enacted pursuant to the Sentencing Reform Act of 1984. 1 The Act proposed to eliminate unwarranted disparities in sentencing, while maintaining flexibility sufficient to address the fundamental requirement of individualized punishment. 2 Congress formed the United States Sentencing Commission to act as the medium for promulgating the Guidelines. 3 And, while the Commission's Guidelines reflect the traditional theories of sentencing - uniformity and individualized punishment - they clearly give greater weight to the former. 4 Yet, the Sentencing Reform Act did not mark sentence disparities for elimination, but rather "unwarranted sentence disparities." 5 To assure judges the flexibility necessary to individualize sentences, 6 Congress instructed the Commission to fashion a departure procedure. 7 This procedure, whereby judges could depart from a presumptive sentencing range, was intended to be an integral part of the Guidelines. 8 However, for a variety of reasons, sentencing judges have been unwilling to use the departure provisions the Commission intended. 9 The result has been considerable unwarranted uniformity. 10 This article addresses the struggle against unwarranted sentencing uniformity, specifically as it relates to defendants with extraordinary family circumstances. 11 First, I will review the evolution of departures based on extraordinary family circumstances, attempting to isolate factors that urge sentencing judges to depart. I highlight several cases that expose the difficulties courts encounter addressing the most troublesome sentencing issues. Then, I will examine these departures in light of several additional factors that, ...