Is HIV “Extraordinary”?

The Sentencing Reform Act of 1984 (the “Act”) attempts to reduce inconsistencies in the sentences of defendants convicted of comparable crimes. The Act created a Sentencing Commission (the “Commission”) and authorized it to promulgate a set of sentencing guidelines to steer judicial decisionmaking. To fulfill this mandate, the Commission drafted the Federal Sentencing Guidelines (the “Guidelines”), which Congress enacted in 1987. Although Congress wanted to eliminate sentencing disparities, it also wanted to allow some degree of individualized sentencing. To achieve the correct balance, the Commission created three categories of characteristics: those a court must consider in sentencing each defendant; those a court must never consider; and those that, while normally irrelevant to sentencing decisions, a court may consider when circumstances warrant. Among the characteristics usually inapposite to a sentencing court’s decision is the physical condition of the defendant – a consideration mentioned in section 5H1.4 of the Guidelines. Only when the defendant’s condition represents an “extraordinary physical impairment” may the sentencing court grant a downward departure or consider a sentence other than imprisonment, Courts have been unable to agree on the question of whether HIV-positive status, HIV with an attending medical complication, or AIDS should count as extraordinary physical impairments warranting a downward departure. Unfortunately, this problem will not fade away. Experts predict that the number of HIV infections will increase in the coming years, disproportionately affecting criminal populations. This Note argues that HIV-positive status, HIV with an attending medical complication, and AIDS should not automatically qualify as extraordinary physical impairments. Rather, the sentencing court should make findings of fact to determine whether the individual defendant suffers from a related complication – either before or after any explicit application of the AIDS label – such that the related complication qualifies him for a downward departure.