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Mitigation Paradigms: What Reduces Criminal Sentences, Explanation or Excuse?

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Illustration by Barbara Kelley: Hands in multiple rows of handcuffs 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 And, 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 Asia5 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. Irey’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. §3553(a)(1), 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 as explanation, though that language was dropped from later editions. Still, some courts have adopted similar views, one stating, “We unambiguously hold that mitigating circumstances are different from excuses,”17 which are put forth to avoid otherwise deserved punishments.

Similarly, courts have vacated death sentences when juries were given the false impression that mitigating circumstances must provide excuses.18 Defense attorneys have argued that a juror should be struck for expressing the view that mitigating circumstances are “merely excuses.”19 Commentators have warned of viewing mitigation as excuse, including the observation that “a defendant’s history of…victimization supplies an explanation for criminal law-breaking violence” and “adversely conflat[ing] such an explanation with moral excuse ” can result in a sentence being imposed to “banish the defendant as a moral pariah,” rather than to punish appropriately for the crime.20 Scholars have expressed bewilderment at the treatment of some mitigating considerations as excuses:

What is meant by labeling these considerations as an “excuse”?… [A] diminished ability to control impulses and/or to evaluate consequences implies a diminished capacity for responsibility; meaning, an agent who genuinely lacks the capacity to control an impulse is not responsible for acting in accordance with that impulse….21

This observation leaves us with a strong sense for how philosophy and science play into this discussion. Does it not all boil down to free will? Indeed, views on mitigation arise from the great debate that has been waged for centuries at the intersection of criminal law, philosophy, and science, where thinkers scrutinize the law’s basis for punishing criminal acts in light of questions of morality, free will, determinism, psychology, neuroscience, and other ongoing mysteries.22 But, this article follows in the form the issues have taken in practice, and sets the larger philosophical debate aside, because, generally, that debate and the everyday practice are two very different kettles of fish.

If you happen by a felony trial in the Gerstein Building in Miami, you will be unlikely to hear the prosecutor cite Thomas Aquinas on free will. For better or worse, some things are taken for granted on the law’s ground floor.

Thus, although a philosophical mire lurks always just off the horizon of the instant discussion, this article takes the law at its word, as practitioners must, that criminal punishment is philosophically justified and that mitigating evidence can rightfully reduce one’s deservingness of it. Here, a simpler inquiry is made: How do practitioners view mitigation, and how does that affect what they do?

This brings us to those that view mitigation as excuse. Definitions of mitigating circumstances have been criticized for excluding excuses for crime.23 Forms of mitigating evidence have been criticized for being excuses, including the argument that “the law undermines the value of self-control by allowing jurors to consider an ‘abuse excuse’ as a causal explanation of crime.”24 Indeed, the excuse-view of mitigation commonly leads to evidence being devalued. Prosecutors have argued to juries that mitigating circumstances should be rejected as mere excuses.25  ourts have found such arguments to be permissible.26 Commentators have taken the view that capital sentencing is designed to be a means of somehow “restor[ing] a moral balance,”27 which suggests that the role of mitigating evidence in that design would be to provide a moral counterweight to the moral wrong of the crime. Scholars have even suggested that allowing explanations to mitigate destroys the moral foundations of the criminal justice system:

Social deprivation may well establish a credible explanation of how the defendant has come to have the character he has. But it does not establish a moral excuse any more than a legal one, for there is a difference between explaining a person’s wrongful behavior and explaining it away. Explanations are not excuses if they merely explain how the defendant came to have the character of someone who could do such a thing. Otherwise, there would be no basis for moral responsibility in any case where we knew enough about the person to understand him.28

Perhaps this devastating proposition is somewhere near the heart of the disagreement: Would there be anything left of our basis to punish people we truly understood — actually knew, deep down, and saw for what they were — if explanation were allowed to mitigate?

Regardless, the conflicting views on mitigation reflect widespread confusion over what mitigation means in criminal sentencing. Does mitigating evidence do its job by helping to explain why criminal conduct occurred, or must it serve to excuse culpability in order to call for a lesser sentence?

This issue has come within a hair’s breadth of review by the U.S. Supreme Court. In Eddings v. Oklahoma, 455 U.S. 104, 113 (1982), a state court found Eddings’ troubled family history was not mitigating because it was “‘useful in explaining’ his behavior, but it did not ‘excuse’ the behavior.” When the case arrived at the Supreme Court, the issue was somewhere on the table: Can evidence mitigate by explaining rather than excusing criminal conduct? But the Court’s ruling only grazed that issue. The Court found simply that “the evidence Eddings offered was relevant mitigating evidence,”29 and had to be considered as such. The Court did not go so far as to say that the reason it had to be considered was that it was explanatory, even though not excusing, of the crime. That was the state court’s conception of things. The Supreme Court said in Eddings merely that certain mitigating evidence could not be completely discounted (in that case, on the theory that it was insufficient to entirely excuse the crime). There is still plenty of room for courts to consider mitigating evidence as excuse, as long as they consider it.

Since Eddings does not resolve our problem, and practitioners can still disagree as to whether mitigation is more about explanation or excuse, let us turn now to what I have described as a quintessential example of courts doing just that, and see what we might learn about our own views on the issue.

The Sentencing Facts of United States v. Irey
William Irey’s work took him often from his home in Florida to Asia, where, over the years, he went many times to Cambodia. Many people go to Cambodia for many reasons. Irey went there to torture, rape, sodomize, terrorize, bind with duct tape, adorn with vulgar words written on skin in marker, video record, humiliate, disgrace, and altogether dehumanize so many horrified and helpless children.30 I will not ask readers to review the details of his conduct. Indeed, they are unpublishable. In return, readers should proceed with the sense that more detail would reflect only more depravity. This exercise depends on first creating the overwhelming sense of moral outrage that Irey’s crimes duly inspire. So let it be said that however bad readers might imagine it to be, it was worse.

Law enforcement caught up to Irey through his sharing online the images he had recorded. He was charged under 18 U.S.C. §2251(c) and convicted of coercing minors to engage in sexually explicit conduct outside the U.S. for the purpose of producing visual depictions and transporting them home. The U.S. Sentencing Guidelines called for life imprisonment, but a statutory maximum knocked the guidelines sentence down to an even 30 years or 360 months.31

As in all federal sentencing, §3553(a) required consideration of Irey’s history and characteristics as sentencing factors. In that regard, the following evidence was before the court: Irey’s family stuck by him, maintaining that he was a good father and husband; Irey had no criminal record; Irey then resided at a psychiatric hospital, where he was being treated for sexual addiction; a psychological evaluation revealed that Irey “had a psychiatric disorder known as ‘heterosexual pedophilia’ and was in need of ‘appropriate professional treatment’”; and a mental health expert testified that Irey “had a ‘long-standing problem with sexual obsession,’” which had proven “‘amenable to treatment’” in light of “‘observable progress’”32; Irey “was also suffering from either depression or an adjustment disorder with depression features”; and Irey “had accepted responsibility…, was treatable, and could be successful in supervised release after treatment.”33

The Sentence Imposed by the District Court
On this evidence, the district court sentenced Irey to 210 months of imprisonment, followed by spending the rest of his life on supervised release, which would involve mandatory participation in a mental health program specializing in sex offender treatment.34 Irey’s term of imprisonment was 12 1/2 years less than what the guidelines recommended.

Why the lesser sentence despite the horrendous conduct?

For starters, Irey was not charged with every act of sexual abuse he committed overseas. The court felt that because he “was charged with, and pled guilty to, a single count of…foreign production of child pornography for distribution in the United States,” the nature of the crime, and the foreign setting of its underlying acts, created a disconnection between the most abhorrent conduct and the basis of the charge.35

Additionally, as later put by Judge Barkett of the 11th Circuit, “the government failed to present any evidence whatsoever to rebut or challenge any of the defendant’s witnesses at sentencing. And, it was not the district judge’s job…to supply and rely on evidence that was not presented.”36 The facts the sentencing court had to work with were that Irey had a mental disorder, acted in part under the influence of that disorder, and was treatable.

Here, we find the district court’s conception of mitigation at the heart of its decision:

Mr. Irey’s acts that bring him here today, I think it’s safe to say, were not purely volitional. I think they were due in substantial part to a recognized illness. And while it does not excuse his conduct and he will still be held accountable for it, I think it would be inappropriate to ignore that fact.37

For the district court, mental illness did not excuse what Irey did, but it helped explain, and the sentence had to account for that. To better do this, the court “engaged [an expert witness] in a colloquy in an effort to understand the nature of pedophilia from the standpoint of a mental health professional.”38 Even though the court saw the conduct as “‘horrific,’” “revolting,” and “utterly vile,” and dwelled on the fact that “‘[t]hese young children were victims who may never, never overcome their abuse,’”39 the court still held true to §3553(a), and sought an informed understanding of from where the conduct came.

The First Decision of the 11th Circuit
The district court’s conception of mitigation became a basis for the appeal. The government argued essentially that the sentence was unreasonably lenient, in part because “the district court relied on the view that pedophilia is an illness.”40

Upon review, a three-judge panel affirmed the sentence. It did so out of respect for the district court’s sentencing discretion. Even though it “might have imposed a different sentence,” it had to review only for reasonableness, and, by all accounts, “the district judge took this sentencing seriously and proceeded thoughtfully” toward a “reasoned” conclusion.41 Besides, the panel felt that “courts never should see the imprisonment in this country of a person for 17 1/2 years as light punishment” and “no serious person should regard it as a trifle,” even though “some people may feel that no sentence would be too harsh for this crime.”42

Judge Hill wrote separately, in part to point out that he “disagree[d] with the apparent weighty consideration that the sentencing judge gave to the notion that this defendant acted on account of some type of ‘sickness.’”43 But he too honored the district court’s discretion.

So, Irey had been sentenced and his sentence affirmed. The matter seemed concluded.

The Second Decision of the 11th Circuit
Yet, four months later, the 11th Circuit sua sponte ordered rehearing en banc, and vacated the panel decision, and remanded to the district court with an uncommonly definite mandate: to impose a sentence of exactly 30 years.44 The court went from upholding sentencing discretion to leaving exactly nothing of it.

Why did the court reach a decision so different from the panel? There are two answers.

First and foremost, it came down to the judges’ fundamental conceptions of mitigation. Consider this rather astounding passage from Judge Carnes, writing for the majority:

The more fundamental problem with the district court’s recasting of Irey-the-criminal as Irey-the-victim is the legal premise behind it, one that suggests the criminal is like his victims. Irey is the wrongdoer, the predator, the victimizer. The little girls in Cambodia are the wronged, the prey, the victims. The district court should have kept the two separate and not commingled them in its thinking. Child molesters and the children who are their victims do not occupy the same moral plane or position or anything resembling it.45

Here we find the fundamental difference of opinion that was responsible for Irey’s case whipping to and fro, as it did, from one sentence to another. While the district court, whose discretion was upheld by the panel, viewed mental illness as mitigating because it helped explain Irey’s conduct, Judge Carnes’ majority believed Irey was not entitled to it as a moral excuse. Such consideration represented a “legal premise”46 that confused Irey with his victims in the moral calculus of the case.

That answer informs our own views on sentencing, as discussed below, but it is not the only answer. The other reason the full court and the panel were so far apart was the standard of appellate review. Ostensibly, the full court simply felt less circumscribed by the deference owed the district court than did the panel. Indeed, Irey, as a precedent, seems to be mostly about the standard of appellate review, but not because it has nothing to offer on the subject of mitigation.47

What Irey Can Teach Us About Our Own Views on Mitigation
The district court determined that Irey’s illness — as established by expert testimony — did not entirely excuse his conduct, but explained that it was not undertaken entirely of free volition. Perhaps it explained Irey’s desire, though not how darkly he indulged it. The majority of the 11th Circuit felt that viewing Irey as a victim of an illness represented a “legal premise” that improperly recast “Irey-the-criminal as Irey-the-victim,” failed to separate “the wrongdoer, the predator, the victimizer” from “the wronged, the prey, the victims,” and improperly put them on “the same moral plane.”48 In other words, for the 11th Circuit, victims and victimizers, prey and predators, innocents and wrongdoers are two distinct groups. They occupy separate moral planes. They deserve different moral consideration, and, as a matter of law, no one can belong to both. How candid and fascinating an insight into the minds of these jurists!

Others weighed in on this difference of opinion. The government believed that the district court’s consideration of pedophilia as an illness was an appealable issue. And Judge Hill took exception to viewing it as “some type of ‘sickness.’”49 Here we find further insight into how mitigation is viewed in criminal sentencing.

For some, Irey’s acts were just too vile, so vile that consideration of his mental health evidence was improper.50 Smoldering beneath their words was the sense that the evidence of mental illness was just an excuse, and a paltry one at that. In a later opinion, the district court responded that “[b]y this logic, once a defendant’s criminal conduct reaches a certain point, nothing else can be considered in imposing a sentence.”51 The district court put a fine point on it: “[T]he majority found that a mitigating factor, supported by substantial evidence and unchallenged by the government, was trumped by its aversion to Irey’s crime.”52 Indeed, what does the vileness of an act have to do with whether it was prompted in part by mental illness? If it was, considering that fact is not overly sympathetic. It is rational.

Perhaps, there was some other reason why the majority would have rejected pedophilia as an improper mitigating consideration. Let us consider that.

First to science. “In psychiatry’s nosology — the Diagnostic and Statistical Manual of Mental Disorders (DSM) — mental disorders of sexual deviance are called paraphilias,” and one of those is “pedophilia.”53 It is indeed a recognized mental disorder, making the incredulity that met the district court’s treatment of it as such seem rather misplaced. It is not just “some type of ‘sickness,’”54 it is a particularly classified and delineated one.

Next, to Florida law. The Florida Supreme Court has found that “pedophilia arguably reduce[s] the degree of moral culpability for [a] crime.”55 In Ault v. State, 53 So. 3d 175 (Fla. 2010), a defendant, like Irey, offered expert testimony that he was diagnosed with pedophilia, that he had “brain impairments [which] were consistent with those found in individuals diagnosed with pedophilia,” that “pedophilia was a compulsion,” and that “pedophilia is a mental illness.”56 But the sentencing judge, taking a view similar to that of the government, Judge Hill, and Judge Carnes’ majority in Irey, found pedophilia was “not a mitigator for murder.”57 The Florida Supreme Court reasoned that, “[w]hile the degree to which pedophilia is mitigating as to murder itself is questionable,” a diagnosis of pedophilia “appears to meet the definition of a mitigating circumstance.”58 The ruling in Irey — that considering pedophilia as mitigating is an improper legal premise casting the defendant as a victim — does not square with Ault.

Further, consider that “[t]here is evidence that being a victim of child molestation is highly correlated with becoming a child molester.”59 That evidence has led experts to state not only that “we know that there is a strong correlation between suffering abuse and adult crime,” but that “severe abuse and neglect cause criminal behavior.”60 Does this not throw a wrench in the 11th Circuit’s analysis in Irey ? Victimization can precipitate victimization. Prey can become predator; innocent victim can become criminal victimizer. One man, in the course of his life, can be both. Perhaps the vagaries of human experience are too multicolored to paint wrongdoers and victims in only black and white. Perhaps, grey should have been added to the pallet in Irey.

It is for readers to decide what mitigation means to them. Did the 11th Circuit “demoniz[e] Irey,” as suggested by the district court?61 Or did the district court improperly commingle child molesters and their victims when it gave mitigating consideration to Irey’s pedophilia, as suggested by the 11th Circuit? Is mitigation more about explaining bad conduct or making excuses for it? Regardless, one thing is certain. As the panel put it in Irey’s case, “[s]entencing is difficult work.”62 Practitioners should come to it with a clear view of mitigation’s true face, and, it is to be hoped, they will one day see the same one.

Travelers to Southeast Asia will happen past children, walking home from school or giggling with their friends while chasing after a soccer ball. Travelers familiar with Irey’s case might be haunted, as I was, by the thought that many of those children are no doubt older than Irey’s victims. Some may have already been victimized themselves. To make what sense there is to be made of the world, I for one have to believe that the most horrific acts of seemingly inexplicable cruelty, are, in actuality, not entirely either, not entirely beyond explanation, not entirely done out of a choice to delight in suffering.

1 See, e.g., 18 U.S.C. §2251 (2008).

2 See United States v. Martinez, 599 F. Supp. 2d 784, 807 (W.D. Tex. 2009).

3 Timothy R. Spaulding, Moving Beyond Treating Cancer with a Band-Aid: Addressing the Domestic Hindrances to Eradicating Child Sex Tourism and Child Prostitution in Cambodia, 11 Gonz. J. Int’l L. 4 (2008).

4 Ault v. State, 53 So. 3d 175, 194 (Fla. 2010) (the court paraphrasing expert testimony).

5 See United States v. Irey, 612 F.3d 1160, 1166 (11th Cir. 2010) ( Irey II ) (quoting Irey’s testimony that he visited Cambodian brothels “‘many, many times’” as a sex tourist).

6 See Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O’Connor, J., concurring) (“We have defined mitigating circumstances as facts…that may call for a penalty less than death.”).

7 See, e.g., Porter v. McCollum, 558 U.S. 30, 42 (2009) (discussing the broad relevance of mental illness as a mitigating consideration); Sochor v. State, 883 So. 2d 766, 781 (Fla. 2004) (referring to “mental-health-related mitigation”).

8 See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112-13 (1982) (finding child abuse to be a mitigating consideration in sentencing); Ragsdale v. State, 798 So. 2d 713, 716-20 (Fla. 2001) (granting relief in a capital case in which the defendant’s “abusive childhood environment” was not presented to the sentencer).

9 See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 349 (1985) (referring to the “impassioned plea for mercy from…petitioner’s mother”).

10 Woodson v. N. Carolina, 428 U.S. 280, 304 (1976) (finding that “[a] process that accords no significance to relevant facets of the character and record of the individual offender…excludes…compassionate or mitigating factors stemming from the diverse frailties of humankind”).

11 Id.

12 See State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010) (“Section 921.0026(2) sets forth the circumstances under which a departure from the lowest permissible sentence is reasonably justified. The statutory list of mitigating factors is not exclusive….”).

13 Indeed, it is a “well-recognized assumption that sentencing is an individualized procedure” in Florida. Lawley v. State, 377 So. 2d 824, 824-25 (Fla. 1st DCA 1979) (explaining why Fla. R. Crim. P. 3.700(c) permits sentencing by a judge other than the trial judge only in emergency situations).

14 This view has constitutional limitations. For instance, pursuant to the Eighth Amendment, the intellectually disabled cannot be executed. See Atkins v. Virginia, 536 U.S. 304, 321 (2002). Neither can the insane. See Ford v. Wainwright, 477 U.S. 399, 410 (1986). But courts are given a wide berth when it comes to assessing mental illness in the context of mitigation.

15 Peter Tiersma, The New Black’s, 55 J. Legal Educ. 386, 389 (2005).

16 Black’s Law Dictionary (2d ed. 1910).

17 Small v. State, 51 A.3d 452, 460 (Del. 2012). See also State v. Rizzo, 833 A.2d 363, 422, n.49 (Conn. 2003) (“[M]itigating circumstances are not excuses.”).

18 See, e.g., id. (“implying that the defendant’s proposed mitigating circumstances were not mitigating in nature because they were not excuses, the state’s attorney repeatedly implied that mitigating circumstances are excuses.”); Small, 51 A.3d at 461 (“Characterizing the mitigating circumstances as excuses, however, distracts the jury from its proper role….”).

19 See State v. Dunn, 831 So. 2d 862, 876 (La. 2002) (overruled by statute).

20 Anthony V. Alfieri, Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty Abolitionists, 31 Harv. C.R.-C.L. L. Rev. 325, 349 (1996) (emphasis added). See also Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547, 560 (1995) (“It is important to emphasize that mitigating evidence…is not intended to excuse…the significance of what they have done, but to help explain it….”).

21 Paul Litton, The “Abuse Excuse” in Capital Sentencing Trials: Is It Relevant to Responsibility, Punishment, or Neither?, 42 Am. Crim. L. Rev. 1027, 1046 (2005).

22 Commentators have acknowledged the relationship between free will and mitigation. See, e.g., Dale E. Ho, S ilent at Sentencing: Waiver Doctrine and a Capital Defendant’s Right to Present Mitigating Evidence After Schriro v. Landrigan, 62 Fla. L. Rev. 721, 748 (2010) (“[M]any forms of mitigating evidence can be understood, in a broad sense, as evidence that tends to show that a defendant is not autonomous.”); James Michael Blakemore, Counsel’s Control Over the Presentation of Mitigating Evidence During Capital Sentencing, 111 Mich. L. Rev. 1337, 1355 (2013) (observing that while “[o]ur criminal justice system is predicated on the assumption that people…have, and can exercise, free will,” defense attorneys sometimes “use mitigating evidence to belie this assumption.”).

23 See Peter Tiersma, The New Black’s, 55 J. Legal Educ. 386, 389 (2005).

24 Paul Litton, The “Abuse Excuse” in Capital Sentencing Trials: Is It Relevant to Responsibility, Punishment, or Neither?, 42 Am. Crim. L. Rev. 1027, 1029 (observing that “[w]e normally express moral judgments, resentment, and indignation towards an agent when perceiving a wrong, without exploring all its possible psychological or social causes”).

25 See Small, 51 A.3d at 459 (quoting prosecutor as arguing that “when you stop and think about each and every one of those mitigators, what you will find is that they are excuses ”). See also Rizzo, 833 A.2d at 422, n.49 (explaining that the prosecutor “impl[ied] that the defendant’s proposed mitigating circumstances were not mitigating in nature because they were not excuses”); Hunt v. State, 583 A.2d 218, 242 (1990) (explaining that the prosecutor “argued that even if the jury believed Hunt’s explanations and excuses for his behavior, it nevertheless should find these factors not to be mitigating”).

26 See Hunt, 583 A.2d at 242 (finding that Hunt’s prosecutor made a “permissible argument” when encouraging the jury to reject mitigating evidence as providing excuses).

27 Robert Blecker, With Death Penalty, Let Punishment Truly Fit the Crime, CNN, Aug. 22, 2013,

28 Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 284 (1987) (emphasis added).

29 Eddings, 455 U.S. at 115.

30 See Irey II, 612 F.3d at 1166-68.

31 Id. at 1166.

32 United States v. Irey, 746 F. Supp. 2d 1232, 1236 (M.D. Fla. 2010) ( Irey III ) (quoting the presentence investigation report and testimony regarding the evaluation).

33 United States v. Irey, 563 F.3d 1223, 1225 (11th Cir. 2009) ( Irey I ).

34 Id.

35 Irey III, 746 F. Supp. 2d at 1236. There could be some debate as to how this position might square with the principle of relevant conduct under U.S. Sentencing Guidelines §1B1.3.

36 Irey II, 612 F.3d at 1278 (Barkett, C.J., dissenting).

37 Id. at 1178 (quoting judge’s sentencing remarks from the sentencing hearing) (emphasis added).

38 Irey III, 746 F. Supp. 2d at 1237.

39 Id. at 1235-36.

40 Irey I, 563 F.3d at 1226.

41 Id.

42 Id.

43 Id. at 1227 (Hill, C.J., concurring).

44 Irey III, 746 F. Supp. 2d at 1235.

45 Irey II, 612 F.3d at 1199.

46 Id.

47 W hat Irey II seemed to say about the deference owed district courts shook up the criminal law community. Judge Birch’s dissent set the tone. He believed that “[t]he time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case,” because, instead of reviewing the district court’s judgment, the majority was “substituting its own.” Id. at 1276, 1278 (Birch, C.J., dissenting). The panel had also viewed the case as being “about the discretion of a district court to impose a particular sentence,” given that “[a]ppellate judges are not authorized to substitute their personal views of what might be the best sentence for the sentence imposed by the district judge.” Irey I, 563 F.3d at 1224, 1225.

These comments belong to a debate over the appropriate standard of appellate review that has been for decades a jurisprudential black hole that often pulls appeals off course and swallows their substantive issues. In the 1946 case of Kotteakos v. United States, 328 U.S. 750 (1946), the U.S. Supreme Court, addressing concerns that appellate courts had become “impregnable citadels of technicality,” id. at 759, mused that “[j]udgment, the play of impression and conviction along with intelligence, varies with judges and also with circumstance” in a way that “transcend[s] confinement by formula or precise rule” and “cannot ever be wholly imprisoned in words.” Id. at 761. In light of this hopelessness in formulating the perfect appellate standard, it is no wonder that disagreement over the appropriate standard of deference in various sorts of appellate review persists, and Irey’s case, like so many cases before it, was drawn in, along with all the other issues it might have come to be about. So, we find ourselves here attempting to pull one of those issues back out of the maw, not because it was too insignificant to make its own way into the jurisprudence, but because it was swept off course and eaten up before it could.

48 Irey II, 612 F.3d at 1199.

49 Irey I, 563 F.3d at 1227 (Hill, C.J., concurring).

50 R ecall that Judge Hill “disagree[d] with the apparent weighty consideration that the sentencing judge gave to the notion that this defendant acted on account of some type of ‘sickness,’” Id. at 1227 (Hill, C.J., concurring), and that the Irey II majority believed that considering Irey’s mental disorder was a tantamount to “recasting…Irey-the-criminal as Irey-the-victim.” Irey II, 612 F.3d at 1199.

51 Irey III, 746 F. Supp. 2d at 1238.

52 Id. at 1241.

53 M elissa Hamilton, Adjudicating Sex Crimes as Mental Disease, 33 Pace L. Rev. 536, 536-37 (2013) (footnote omitted). Pedophilia remains a specified disorder in the most recent edition of the DSM, the DSM-V. See In re Det. of New, 21 N.E.3d 406, 413 (2014) (discussing the inclusion of that disorder as opposed to the related hebephilia).

54 Irey I, 563 F.3d at 1227 (Hill, C.J., concurring).

55 Ault v. State, 53 So. 3d 175, 194 (Fla. 2010).

56 Id. at 193-94.

57 Id. at 193.

58 Id.

59 United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007).

60 Paul Litton, The “Abuse Excuse” in Capital Sentencing Trials: Is It Relevant to Responsibility, Punishment, or Neither?, 42
Am. Crim. L. Rev. 1027, 1029, 1048 (emphasis in original).

61 Irey III, 746 F. Supp. 2d at 1245.

62 Irey I, 563 F.3d at 1227.

Chance Meyer represents death-sentenced defendants in postconviction proceedings and is an adjunct professor at the Shepard Broad Law Center of Nova Southeastern University. He is a former law clerk to Judge Robert T. Dawson, U.S. District Court for the Western District of Arkansas, and an honors graduate of Tulane Law School.