Harsh Incarceration Conditions and Sentencing

Cases in Point

Courts presented with an argument for consideration of harsh incarceration conditions have responded differently. Some judges have entirely refused to take them into account, and their decisions have held up on appeal. For example, in United States v. Gomez, 402 Fed. Appx. 579, 581 (2d Cir. 2010), the court held that the defendant was not entitled to a reduction. On appeal, the Second Circuit found no procedural error and emphasized that the defendant offered no evidence of the conditions he personally faced. Id.; see also United States v. Naranjo-Ramirez, 402 F. App'x 576, 578 (2d Cir. 2010) (noting that the sentencing court may ' but has no obligation to ' reduce the sentence based on harsh pretrial confinement conditions); United States v. Villegas-Amariles, 237 F. App'x 654, 656 (2d Cir. 2007) (refusing to find a sentence at the bottom of the guidelines range unreasonable and finding that it properly accounted for the deplorable pre-extradition conditions and the seriousness of the offense); United States v. Sanpedro, 352 F. App'x 482, 486-87 (2d Cir. 2009) (finding no abuse of discretion in the sentencing court's conclusion that the harsh conditions of the defendant's pretrial confinement, in light of other relevant factors, warranted a sentence at the bottom of the guidelines' range but did not warrant a further reduction).

In other cases, however, courts have reduced imprisonment terms based on harsh pretrial confinement. See, e.g., United States v. Cruz-Vargas, No. 06 Cr. 507, Sentencing Hr'g Tr. 41, 51 (S.D.N.Y. Jan. 5, 2010); see also United States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001) (“pre-sentence confinement conditions may in appropriate cases be a permissible basis for downward departures”).

Calculating the Reduction

Where courts do reduce sentences on this basis, they do not follow a precise or consistent formula in calculating the reduction. The length of the reduction, nevertheless, typically bears some relationship to the time the defendant spent under severe conditions. For instance, the defendant in United States v. Henao had spent 16 months in a women's prison in Colombia where she faced harsh conditions, including a lack of basic medical care. United States v. Henao, No. 01 Cr. 864 (S.D.N.Y. July 27, 2011), Sentencing Hr'g Tr. 18-19, July 27, 2011. The court granted a 26-month downward variance based on the defendant's 16-month incarceration in Colombia, her remorse, and other factors. Id. at 18-19, 22.

Another court granted a 24-month downward variance from a stipulated Guidelines range based on the defendant's health and the circumstances of his 13-month imprisonment in Colombia. United States v. Garcia-Giraldo, No. 02 Cr. 706 (S.D.N.Y. Aug. 29, 2006), Sentencing Hr'g Tr. 29, Aug. 29, 2006; see also United States v. Torres, No. 01 Cr. 1078, 2005 WL 2087818, at *2 (S.D.N.Y. Aug. 30, 2005) (granting a one-level downward departure based on defendant's five-month detention at Combita prison in Colombia after concluding that “while it is an exaggeration to compare Combita to a concentration camp, conditions there at the time of the defendant's incarceration were harsh by any American standard”); United States v. Salvador, No. 98 Cr. 484, 2006 WL 2034637, at *4-5 (S.D.N.Y. July 19, 2006) (granting a downward departure based on the defendant's six-month incarceration in the Dominican Republic, thereby reducing his offense level from 40 to 39 and the Guidelines range from 292-365 months to 262-327). But see United States v. Fajardo, No. 03 Cr. 156-04, 2006 WL 3498640, at *3-4 (S.D.N.Y. Dec. 5, 2006) (taking note of pre-sentence detention conditions in Colombia, but noting that a downward departure was unavailable because the 10-year statutory mandatory minimum acted as the lower bound of the defendant's Guidelines range); United States v. Castellanos, No. 03 Cr. 156-08, 2006 WL 3016313, at *3-4 (S.D.N.Y. Oct. 23, 2006) (same).

Where this issue has come up, no particular test has emerged for how harsh the conditions have to be before they can be a basis for a downward variance, but presumably the harsher the conditions the greater the downward variance the defendant can hope to obtain. Significantly, courts have rejected the argument that the defendant's experience must have been notably worse than the experience of his or her fellow prisoners housed at the same prison. United States v. Cruz-Vargas, No. 06 Cr. 507 (S.D.N.Y. Jan. 5, 2010), Sentencing Hr'g Tr. 9-15, Jan. 5, 2010.

Instead, it appears sufficient to show that your client was exposed to conditions that depart significantly from the minimally accepted norm in the United States. Id.; United States v. Rivera-Vera, No. 04 Cr. 289, Sentencing Hr'g Tr. 33-34, (S.D.N.Y. Sept. 17, 2007).

Suggestions for Argument

What should the attorney do when attempting to gain more lenient treatment for a client who has suffered harsh incarceration? Here are some tips:

• Don't rely solely on general reports regarding the prison. It is a mistake to limit your proof to U.S. State Department reports or other general discussions of the conditions at a particular prison. Just because the prison is notorious as a general matter does not necessarily mean that the defendant's own experience there was particularly difficult.
• Focus on the specifics of your client's situation. Focus on the particular circumstances your client faced from the day he arrived to the day he left. Where did he sleep? What did he eat? Did he have access to basics like potable water, sanitation, and medical care? Was he subjected to violence or other situations that threatened his safety or made him fear for his life?
• Dig deep and focus on the sights, sounds, and smells of the prison. It is natural to want to talk about these issues more generally, rather than specifically. For instance, your instinct may be to say that the defendant was subjected to “deficient sanitation conditions” and “for days denied any medical care.” But try to do better, even if these are not topics typically discussed in polite company. Force yourself to explore with your client, and then the judge (as you would with a jury), the extremely unpleasant ' and sometimes revolting ' details of the conditions to which your client was exposed. For instance, if your client was in a prison with no running water and had to smell human feces from overflowing toilets day in and day out, say so. If there were insects and rodents crawling on food, say so.
• Cite specific evidence. Although the Federal Rules of Evidence do not apply at sentencing, you still want to lay a thorough and credible foundation for the court to rely on. Cite to specific and credible evidence, such as any complaints lodged by the defendant while being held, or medical records documenting severe health issues. Append an affidavit and sworn accounts from anyone who witnessed the defendant's struggle under the deplorable conditions. (If there is a study by an international organization that is consistent with your client's account, mention it as well, but don't make it the sole proof.)
• Highlight unique aspects of the defendant's situation. While it is not necessary to show that the defendant's experience was worse than that of an average prisoner at that prison, if your client had a particular condition (medical or otherwise) that made the harsh incarceration even harder on him than on the rest of that prison's population, there certainly is no harm in highlighting that fact.
• Keep in mind the harm suffered by the victim. Be solicitous of the harm suffered by any victim as a result of the crime for which the defendant is being sentenced. If the victim endured harm similar or greater to the harm suffered by the defendant at the prison, think carefully about how you phrase your argument, whether to make the argument at all, and the weight you place on your client's suffering. In some cases, raising the conditions issue may end up being counter-productive, as it will only further highlight the nature of the offense, which is another factor that the court must consider when determining the defendant's sentenced under ' 3553(a).
• Ask your client to speak briefly at the sentencing hearing about his experience. At the sentencing, the court will ask the defendant if he or she wants to address the court. By that time, your written submission should already have set out (and the court should likely have read) a specific and detailed description of the harsh conditions your client endured. But it will be helpful for the client, without rehashing the same in detail, to speak briefly about how difficult the conditions were, provide two or three succinct examples that demonstrate this difficulty, and discuss the effect the conditions had on his physical and mental health.

Conclusion

In the end, defense counsel should be sure always to ask their clients about their pre-sentencing incarceration conditions, and, if there is a basis, seek a downward variance. While the court ultimately may decline the variance, typically, there is no downside to making this argument, particularly where it is backed up by strong, specific, and particularized evidentiary support. The argument may just convince the court to shorten the sentence by several months and, in rare circumstances, by several years.

Svetlana M. Eisenberg and Daniel O. Blau are attorneys in the New York office of Debevoise & Plimpton LLP.

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If, post-arrest, your client was subjected to extremely harsh incarceration conditions (either in the United States or abroad), can you argue that his or her sentence should be more lenient in light of the harm he or she endured?

In determining the defendant's sentence, courts must take into account a variety of factors, including the “history and characteristics of the defendant.” 18 U.S.C. ' 3553(a)(1). If the defendant endured dire incarceration conditions (such as interpersonal violence or threats, or no access to basic hygiene or potable water), that experience is a part of the defendant's “history” and can warrant a downward variance from the advisory sentencing guidelines range. This is because the defendant has suffered an uncommonly severe punishment already, a factor that the advisory guidelines range does not adequately reflect.

Defendants have made this argument with varied success. While the court may ultimately disregard it altogether, as a general rule there is no harm and a large potential benefit to making it. If successful, it may reduce the defendant's sentence by at least several months.

Cases in Point

Courts presented with an argument for consideration of harsh incarceration conditions have responded differently. Some judges have entirely refused to take them into account, and their decisions have held up on appeal. For example, in United States v. Gomez , 402 Fed. Appx. 579, 581 (2d Cir. 2010), the court held that the defendant was not entitled to a reduction. On appeal, the Second Circuit found no procedural error and emphasized that the defendant offered no evidence of the conditions he personally faced. Id .; s ee also United States v. Naranjo-Ramirez , 402 F. App'x 576, 578 (2d Cir. 2010) (noting that the sentencing court may ' but has no obligation to ' reduce the sentence based on harsh pretrial confinement conditions); United States v. Villegas-Amariles , 237 F. App'x 654, 656 (2d Cir. 2007) (refusing to find a sentence at the bottom of the guidelines range unreasonable and finding that it properly accounted for the deplorable pre-extradition conditions and the seriousness of the offense); United States v. Sanpedro , 352 F. App'x 482, 486-87 (2d Cir. 2009) (finding no abuse of discretion in the sentencing court's conclusion that the harsh conditions of the defendant's pretrial confinement, in light of other relevant factors, warranted a sentence at the bottom of the guidelines' range but did not warrant a further reduction).

In other cases, however, courts have reduced imprisonment terms based on harsh pretrial confinement. See, e.g., United States v. Cruz-Vargas , No. 06 Cr. 507, Sentencing Hr'g Tr. 41, 51 (S.D.N.Y. Jan. 5, 2010); see also United States v. Carty , 264 F.3d 191, 196 (2d Cir. 2001) (“pre-sentence confinement conditions may in appropriate cases be a permissible basis for downward departures”).

Calculating the Reduction

Where courts do reduce sentences on this basis, they do not follow a precise or consistent formula in calculating the reduction. The length of the reduction, nevertheless, typically bears some relationship to the time the defendant spent under severe conditions. For instance, the defendant in United States v. Henao had spent 16 months in a women's prison in Colombia where she faced harsh conditions, including a lack of basic medical care. United States v. Henao , No. 01 Cr. 864 (S.D.N.Y. July 27, 2011), Sentencing Hr'g Tr. 18-19, July 27, 2011. The court granted a 26-month downward variance based on the defendant's 16-month incarceration in Colombia, her remorse, and other factors. Id. at 18-19, 22.

Another court granted a 24-month downward variance from a stipulated Guidelines range based on the defendant's health and the circumstances of his 13-month imprisonment in Colombia. United States v. Garcia-Giraldo, No. 02 Cr. 706 (S.D.N.Y. Aug. 29, 2006), Sentencing Hr'g Tr. 29, Aug. 29, 2006; see also United States v. Torres , No. 01 Cr. 1078, 2005 WL 2087818, at *2 (S.D.N.Y. Aug. 30, 2005) (granting a one-level downward departure based on defendant's five-month detention at Combita prison in Colombia after concluding that “while it is an exaggeration to compare Combita to a concentration camp, conditions there at the time of the defendant's incarceration were harsh by any American standard”); United States v. Salvador , No. 98 Cr. 484, 2006 WL 2034637, at *4-5 (S.D.N.Y. July 19, 2006) (granting a downward departure based on the defendant's six-month incarceration in the Dominican Republic, thereby reducing his offense level from 40 to 39 and the Guidelines range from 292-365 months to 262-327). But see United States v. Fajardo , No. 03 Cr. 156-04, 2006 WL 3498640, at *3-4 (S.D.N.Y. Dec. 5, 2006) (taking note of pre-sentence detention conditions in Colombia, but noting that a downward departure was unavailable because the 10-year statutory mandatory minimum acted as the lower bound of the defendant's Guidelines range); United States v. Castellanos , No. 03 Cr. 156-08, 2006 WL 3016313, at *3-4 (S.D.N.Y. Oct. 23, 2006) (same).

Where this issue has come up, no particular test has emerged for how harsh the conditions have to be before they can be a basis for a downward variance, but presumably the harsher the conditions the greater the downward variance the defendant can hope to obtain. Significantly, courts have rejected the argument that the defendant's experience must have been notably worse than the experience of his or her fellow prisoners housed at the same prison. United States v. Cruz-Vargas , No. 06 Cr. 507 (S.D.N.Y. Jan. 5, 2010), Sentencing Hr'g Tr. 9-15, Jan. 5, 2010.

Instead, it appears sufficient to show that your client was exposed to conditions that depart significantly from the minimally accepted norm in the United States. Id.; United States v. Rivera-Vera, No. 04 Cr. 289, Sentencing Hr'g Tr. 33-34, (S.D.N.Y. Sept. 17, 2007).

Suggestions for Argument

What should the attorney do when attempting to gain more lenient treatment for a client who has suffered harsh incarceration? Here are some tips:

• Don't rely solely on general reports regarding the prison. It is a mistake to limit your proof to U.S. State Department reports or other general discussions of the conditions at a particular prison. Just because the prison is notorious as a general matter does not necessarily mean that the defendant's own experience there was particularly difficult.
• Focus on the specifics of your client's situation. Focus on the particular circumstances your client faced from the day he arrived to the day he left. Where did he sleep? What did he eat? Did he have access to basics like potable water, sanitation, and medical care? Was he subjected to violence or other situations that threatened his safety or made him fear for his life?
• Dig deep and focus on the sights, sounds, and smells of the prison. It is natural to want to talk about these issues more generally, rather than specifically. For instance, your instinct may be to say that the defendant was subjected to “deficient sanitation conditions” and “for days denied any medical care.” But try to do better, even if these are not topics typically discussed in polite company. Force yourself to explore with your client, and then the judge (as you would with a jury), the extremely unpleasant ' and sometimes revolting ' details of the conditions to which your client was exposed. For instance, if your client was in a prison with no running water and had to smell human feces from overflowing toilets day in and day out, say so. If there were insects and rodents crawling on food, say so.
• Cite specific evidence. Although the Federal Rules of Evidence do not apply at sentencing, you still want to lay a thorough and credible foundation for the court to rely on. Cite to specific and credible evidence, such as any complaints lodged by the defendant while being held, or medical records documenting severe health issues. Append an affidavit and sworn accounts from anyone who witnessed the defendant's struggle under the deplorable conditions. (If there is a study by an international organization that is consistent with your client's account, mention it as well, but don't make it the sole proof.)
• Highlight unique aspects of the defendant's situation. While it is not necessary to show that the defendant's experience was worse than that of an average prisoner at that prison, if your client had a particular condition (medical or otherwise) that made the harsh incarceration even harder on him than on the rest of that prison's population, there certainly is no harm in highlighting that fact.
• Keep in mind the harm suffered by the victim. Be solicitous of the harm suffered by any victim as a result of the crime for which the defendant is being sentenced. If the victim endured harm similar or greater to the harm suffered by the defendant at the prison, think carefully about how you phrase your argument, whether to make the argument at all, and the weight you place on your client's suffering. In some cases, raising the conditions issue may end up being counter-productive, as it will only further highlight the nature of the offense, which is another factor that the court must consider when determining the defendant's sentenced under ' 3553(a).
• Ask your client to speak briefly at the sentencing hearing about his experience. At the sentencing, the court will ask the defendant if he or she wants to address the court. By that time, your written submission should already have set out (and the court should likely have read) a specific and detailed description of the harsh conditions your client endured. But it will be helpful for the client, without rehashing the same in detail, to speak briefly about how difficult the conditions were, provide two or three succinct examples that demonstrate this difficulty, and discuss the effect the conditions had on his physical and mental health.

Conclusion

In the end, defense counsel should be sure always to ask their clients about their pre-sentencing incarceration conditions, and, if there is a basis, seek a downward variance. While the court ultimately may decline the variance, typically, there is no downside to making this argument, particularly where it is backed up by strong, specific, and particularized evidentiary support. The argument may just convince the court to shorten the sentence by several months and, in rare circumstances, by several years.

Svetlana M. Eisenberg and Daniel O. Blau are attorneys in the New York office of Debevoise & Plimpton LLP.

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