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
