116
Opinion of Souter, J.
cisely documented on film. To allow a departure on this basis is to reason, in effect, that the more serious the crime, and the more widespread its consequent publicity and condemnation, the less one should be punished; the more egregious the act, the less culpable the offender. In the terminology of the Guidelines, such reasoning would take the heartland to be the domain of the less, not the more, deplorable of the acts that might come within the statute. This moral irrationality cannot be attributed to the heartland scheme, however, and rewarding the relatively severe offender could hardly have been in the contemplation of a Commission that discouraged downward departures for susceptibility to prison abuse even when the nonculpable reason is an unusual "[p]hysical . . . appearance, including physique." 1995 USSG § 5H1.4; see also ante, at 107; 1995 USSG ch. 1, pt. A, intro. comment. 3 (discussing the principle of " 'just deserts,' " which the Commission describes as a concept under which "punishment should be scaled to the offender's culpability and the resulting harms").2
The Court of Appeals appreciated the significance of the requisite moral calculus when it wrote that "[a]ny public outrage was the direct result of [petitioners'] criminal acts. It is incongruous and inappropriate to reduce [petitioners'] sentences specifically because individuals in society have condemned their acts as criminal and an abuse of the trust that society placed in them." 34 F. 3d 1416, 1456 (CA9 1994). The Court of Appeals should be affirmed on this point.
I believe that it was also an abuse of discretion for the District Court to depart downward because of the successive prosecutions.3 In these cases, there were facial showings
2 The requirement of normative order does not, of course, say anything one way or the other about considering exceptionally unusual physical appearance as a basis to anticipate abuse.
3 It is true, factually, that successive federal prosecutions after state proceedings occur very rarely even in criminal civil rights prosecutions, U. S. Commission on Civil Rights, Who is Guarding the Guardians?, 112, 116 (Oct. 1981) (noting that between 50 and 100 police misconduct cases
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