UNSCHEDULED DEPARTURES - THE CIRCUMVENTION OF JUST SENTENCING FOR POLICE BRUTALITY

This Article examines the problems presented when courts depart downwa rd from the federal sentencing guidelines in police brutality cases. S entences for police officers increased following the enactment of the sentencing guidelines, which this Article attributes to two factors: t he elimination of sentencing disparities between police and civilian c rimes, and the assignment of additional penalties for the civil rights dimension of the crime. The author contends that, without sentencing guidelines, police brutality is not sentenced commensurate with the ha rm committed; judges were often constrained by community attitudes and norms, even when they recognized the problem and wanted to impose ade quate terms of imprisonment. The author places police brutality and it s causes in the larger context of race and ethnicity in the United Sta tes, especially the African-American relationship to the criminal just ice system. However, the policy of fair punishment for police brutalit y achieved by the use of civil rights sentencing guidelines may be sho rt-lived. In January 1995, the Sentencing Commission staff proposed th at the Commission reduce the offense level for civil rights crimes com mitted under color of law and correspondingly reduce the sentence to b e applied. In the June 1996 decision of Koon v. United States the Supr eme Court upheld most of the departure grounds applied by the trial co urt in sentencing the two police officers convicted in the Rodney King beating. The Supreme Court's decision is troubling because it paves t he way for-downward departures from the sentencing guidelines in futur e police brutality cases. This action effectively sends a message to t he police, and the nation, that police are above the law. This Article argues that the Sentencing Commission must act again to ensure that j ust sentencing for police brutality is maintained. The author recommen ds that the Commission act promptly, amending the guidelines to make c lear that the departure grounds approved by the Supreme Court in Koon are not applicable in police brutality cases.