Legal Definitions - departure

A departure in legal terms refers to a deviation or divergence from an established standard, rule, or previously stated position.

• Deviation from a Standard or Rule: This is the most common legal use, often referring to a court's decision that varies from established guidelines, particularly in sentencing.

  • Downward Departure: This occurs when a court imposes a sentence that is less severe than what the standard sentencing guidelines would typically recommend. This might happen if the judge finds unique circumstances that make the defendant's case less serious than it appears on paper.

    Example: A judge sentences a first-time offender, who stole food to feed their starving family, to probation and community service instead of the minimum prison term suggested by the sentencing guidelines for theft. The judge reasoned that the defendant's extreme financial hardship and lack of prior criminal history constituted a valid basis for a more lenient sentence.

    Explanation: The judge's decision to impose a sentence below the guideline's recommendation is a downward departure, reflecting a judgment that the standard guidelines did not fully account for the specific mitigating circumstances of the case.

  • Upward Departure: Conversely, an upward departure means a court imposes a sentence that is harsher than what the standard sentencing guidelines suggest. This might occur if the judge identifies aggravating factors not adequately considered by the guidelines.

    Example: A defendant convicted of assault receives a longer prison sentence than the guidelines recommend because the judge found that the defendant had intentionally targeted a vulnerable elderly person, a factor not fully captured by the standard guideline calculations for the offense.

    Explanation: The judge's decision to increase the sentence beyond the guideline's recommendation due to the particularly cruel nature of the crime is an upward departure, indicating that the standard guidelines were insufficient for the severity of the offense.

  • Lateral Departure: This refers to a sentence that allows a defendant to avoid traditional incarceration by opting for alternative forms of confinement, such as home detention or community confinement, while still adhering to the overall severity level intended by the guidelines.

    Example: A court sentences a defendant convicted of a non-violent financial crime to a year of house arrest with electronic monitoring and strict reporting requirements, rather than a year in prison, because the defendant has significant family care responsibilities and poses no flight risk. The duration and restrictiveness of the house arrest are deemed equivalent in severity to the guideline's recommended prison term.

    Explanation: By substituting traditional imprisonment with home confinement, the court made a lateral departure, providing an alternative form of punishment that still aligns with the intended severity of the sentencing guidelines.

• Variance Between Legal Documents or Statements: This type of departure refers to an inconsistency or difference between what was stated in an earlier legal document (like a complaint or initial pleading) and what is presented in a later document or as evidence during a trial.

  Example: In a breach of contract lawsuit, the plaintiff's initial complaint alleged that the defendant failed to deliver 500 units of a product. However, during the trial, the plaintiff's presented evidence and witness testimony consistently referred to a failure to deliver 750 units.

  Explanation: The discrepancy between the number of units stated in the initial complaint and the number presented as evidence at trial constitutes a departure, highlighting an inconsistency in the plaintiff's case.

• Abandonment of a Previous Legal or Factual Argument: This occurs when a party in a legal dispute abandons an argument or factual claim they previously made and instead relies on a new, different argument or set of facts.

  Example: In a personal injury case, the defendant initially claimed they were not present at the scene of the accident, presenting an alibi. Later, after new evidence emerged, the defendant withdrew the alibi defense and instead argued that while they were present, the plaintiff was solely responsible for the accident.

  Explanation: The defendant's shift from claiming absence (alibi) to admitting presence but blaming the plaintiff is a departure from their original factual ground.