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Out of character: A primer of the §5k2.20 aberrant behavior departure
By Anne E. Blanchard, Jon M. Sands
Grid & Bear It columns.
Deviating from the proper or expected course. 2. Deviating from what is
normal; untrue to type. – The American Heritage Dictionary of the English
Language (Fourth Edition 2000 p.3)
“Aberrant behavior” is a departure
that acknowledges a person’s criminal act can be totally out of character. It
is a departure that focuses on the individual offender and recognizes that the
offense arose from a unique set of circumstances, and constitutes a complete
break with the person’s normal life, judgment and actions. As sentencing
policy, the departure endorses a scrutiny of a defendant’s whole character and
past. It is also a departure that was forged by the creativity and efforts of
defense counsel and the willingness of courts, in sentencing, to ask “Why?”
The departure, now identified as
U.S.S.G. § 5K2.20, arose from a passing reference in Chapter 1 of the Guidelines
Manual. This reference indicated that the Guidelines had not considered acts of
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