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Harsh Incarceration Conditions and Sentencing

By Svetlana M. Eisenberg and Daniel O. Blau

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.

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