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Nos. 94-1664 and 94-8842

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STACEY C. KOON, PETITIONER 94-1664 v. UNITED STATES LAURENCE M. POWELL, PETITIONER 94-8842

on writs of certiorari to the united states court of appeals for the ninth circuit

[June 13, 1996]

Justice Breyer , with whom Justice Ginsburg joins,

In my view, the relevant Guideline, 1992 USSG §2H1.4, encompasses the possibility of a double prosecution. That Guideline applies to various civil rights statutes, which Congress enacted, in part, to provide a federal forum for the protection of constitutional rights where state law enforcement efforts had proved inadequate. See, e.g., Ngiraingas v. Sanchez, 495 U.S. 182, 187-189 (1990); Monroe v. Pape, 365 U.S. 167, 171-180 (1961); Screws v. United States, 325 U.S. 91, 131-134 (1945) (Rutledge, J., concurring in result). Before promulgating the Guidelines, the Commission "examined the many hundreds of criminal statutes in the United States Code," 1995 USSG ch.1, pt. A, intro. comment 5, and it would likely have been aware of this well known legislative purpose. The centrality of this purpose, the Commission's likely awareness of it, and other considerations that Justice Souter mentions, ante, at __, lead me to conclude on the basis of the statute and Guideline itself, 18 U.S.C. § 3553(b), that the Commission would have considered a "double prosecution" case as one ordinarily within, not outside, the "civil rights" Guideline's "heartland." For that reason, a simple double prosecution, without more, does not support a departure. See 18 U.S.C. § 3553(b) (departures permitted only when circumstances were "not adequately taken into consideration" by the Commission) (emphasis added).

The departure on the basis of potential mistreatment in prison presents a closer question. Nonetheless, differences in prison treatment are fairly common--to the point where too frequent use of this factor as a basis for departure could undermine the uniformity that the Guidelines seek. For that reason, and others that Justice Souter mentions, ante, at __, I believe that the Guidelines themselves embody an awareness of potentially harsh (or lenient) treatment in prison, thereby permitting departure on that basis only in a truly unusual case. Even affording the District Court "due deference," 18 U.S.C. § 3742(e), I cannot find in this record anything sufficiently unusual, compared, say, with other policemen imprisoned for civil rights violations, as to justify departure.