Thursday, June 5, 2014

Sentencing Departures

When a person convicted of a felony offense (for which a prison sentence is possible), the Court is required to consult the Sentencing Guidelines to determine the appropriate sentence.  The Guidelines consist of a table with the crimes listed on the left from least serious (e.g., possession of marijuana) to most serious (e.g., murder).  Across the top are numbers, representing the defendant’s prior criminal record, from zero points to six points.  Special rules apply when the defendant has more than six prior offenses or have sex offenses.

The Guidelines tell the Court when a person should be sent to prison or if he should be placed on probation.  The judge has the authority to decide what the conditions of probation should be, which could include a fine, treatment, community service and county jail time of up to one year.

The law also provides that, in certain circumstances, the judge may depart from the guidelines and sentence the defendant either more leniently or more harshly than the Guidelines provide. 

Some of the most difficult cases I have faced over the years involve the decision of whether or not to send a defendant to prison when that’s what the Guidelines provide. 

In one case, involving charges of violation of a domestic abuse no contact order, the Guidelines called for a prison sentence.  There was no agreement between the attorneys.  The victim hoped to eventually reconcile with the defendant, which was a consideration in my decision.  Here are some excerpts from the Memorandum I filed in that case, explaining my decision to place the defendant on probation and not send him to prison: 

            The Court notes the victim impact statement from the family of the victim.  They ask for the maximum incarceration possible, followed by a lengthy probationary period when Defendant can receive the treatment and help he needs.  These are mutually exclusive goals.  I can either send Defendant to prison for the maximum period allowed or I can place him on lengthy probation.  I have chosen the latter.

            I am well aware of the risks being taken here.  If the unthinkable happens, it is my door upon which the television reporters will knock. 

            Having carefully (and I may say, prayerfully) considered the options here, I have concluded that the best way to avoid the unthinkable is to depart from the Sentencing Guidelines, place Defendant on a lengthy period of probation, and give him all the support available to turn his situation around and remain a law-abiding citizen.

The Defendant is over halfway through his probation.  So far, so good.  I continue to pray that he will succeed. 

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Next Week:  Judges and Religion