One such factor is mental disability. Great discretion is vested in the trial courts in determining when asentence reduction is appropriate under the Guidelines, and decisions not to depart from the Guidelines are generally not appealable. Only when it appears that the district court misunderstood its authority to reduce the defendant's sentence will appellate courts be willing to disturb sentencing determinations. The cases reported so far reflect no coherent reading of the Guidelines and no real understanding of the role of mental disability, short of in exculpating insanity defense, in criminal behavior.
Federal judges are remarkably inconsistent in their reading of mental disability.
At the roots of these misassumptions is another set of unconscious factors that compel judicial behavior. Although there is a robust developing literature about almost all other aspects of the Guidelines, virtually nothing has been written on the application of the Guidelines to mentally disabled persons. This Article seeks to explore that subject by illuminating the ways in which prejudice, misunderstanding, and distrust have infected the federal sentencing process. We begin in Part II with a brief history of the Guidelines, and then, in Part III, we show how the mental disability language in the Guidelines was chosen. Then in Part VI, we more closely demonstrate how the courts' decisions in this area reflect unconscious feelings about mentally disabled defendants, feelings that stem from our urge to punish and that are reflected in the sanist and pretextual court system.