Cite as: 518 U. S. 81 (1996)
Opinion of Breyer, J.
ment 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 116-118, 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 § 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 115-116, 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," § 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.
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