Blame it on the Government: A Justification for the Disparate Treatment of Departures Based on Cultural Ties

This article seeks to reconcile the apparent disparate treatment of downward departures under the United States Sentencing Guidelines based on American and non-American cultural ties. Courts have widely approved of downward departures in cases where a defendant’s assimilation to the United States motivated his illegal reentry (“American assimilation departures”). Yet, courts have disfavored departures in cases where a defendant’s non-American cultural ties motivated his commission of the crime (“non-American cultural departures”). My article will show how these cases can be read consistently without privileging one culture over another. After examining the relevant case law, I will argue that American assimilation departures represent a tacit recognition that the Government (or, more generally, America) is partially culpable for the illegal reentry. The Government created a situation (through its laws, institutions, customs, mores) by which a defendant has assimilated into America, and it was this assimilation that motivated their illegal return. With non-American cultural departures, America by definition is not in any way responsible for causing the defendant to commit the crime. In reaching this conclusion, I will rely on analogous entrapment jurisprudence (something scholars have not done). I will show that there is nothing new about the Government shouldering some of the blame for an offense and that entrapment law supports the idea of apportioning culpability between the defendant and the Government. This apportionment (as opposed to any cultural bias) explains the apparent disparate treatment of these two cultural departures