Law and Fiction: Getting the Facts Straight 8

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Getting the Facts Straight: Criminal Sentencing, Part 1
(First published in the Sisters in Crime Guppy Newsletter, First Draft)

This month, we'll talk about sentencing in criminal cases.

Who decides the sentence? The trial judge -- the judge who presided over a defendant's trial -- is also the sentencing judge. If a judge dies or becomes too disabled to continue work, another judge will be appointed to take over his or her cases, including sentencing. The substitute judge may read the trial transcript, or rely solely on the presentence investigation, report, and hearing. A few states allow juries to recommend sentences.

We'll talk about the role of the jury in capital (death penalty) cases another time.

Philosophy of sentencing: While the role of rehabilitation, retribution, and punishment has been debated for centuries, it is now generally recognized as a matter of public policy that all three elements should be considered, along with the effect of the crime on the victim and the public. In the last twenty-five years, state and federal legislation has resulted in considerable sentencing reform. The aim is to increase uniformity, predictability, and judicial accountability for constitutional reasons, and to increase the deterrent effect of criminal sentencing. With reform, lawyers, judges, and defendants now have a much clearer idea of potential sentences and what factors the judge may rely on.

Federal judges follow the United States Sentencing Commission's guidelines, www.ussc.gov/GUIDELIN.HTM. Some states have also adopted guidelines; see the National Association of State Sentencing Commissions, www.ussc.gov/STATES.HTM. A judge's discretion to impose an exceptional sentence -- greater than the statutory maximum -- is the subject of several recent United States Supreme Court cases. In U.S. v. Booker (2005), the Court held that the Federal Sentencing Guidelines violate the right to trial by jury by allowing judges to impose exceptional sentences based on facts not determined by the jury. If the guidelines are advisory, not mandatory, the Court found no problem. Examples of such facts vary, but may include evidence of additional crimes (Booker), hate crimes (Apprendi v. New Jersey (2000)) or deliberate cruelty (Blakely v. Washington (2004)). Congress, state legislatures, and the courts are still responding to the decisions, and both federal and state sentencing is in flux. Proponents claim a greater ability to tailor individual sentences, but critics -- including Supreme Court Justice Sandra Day O'Connor -- complain that many benefits of sentencing reform have been destroyed.

A federal judge's discretion to sentence below the guideline range was similarly limited. For example, one judge complained that he was forced to impose a higher sentence than he considered appropriate on a defendant convicted with others of bank fraud, in light of the man's role in the crime and that he was raising young children alone. Under advisory guidelines, the judge would have greater discretion.

Factors: In most states, the statute defining a particular crime sets a range or upper limit of punishment, e.g., up to 60 days in the county jail, a fine of $500, or both (Montana's maximum for simple assault), or imprisonment for up to 20 years, a fine up to $50,000, or both (negligent homicide).

Other factors in sentencing include:

-- the facts of the crime -- is it on the lower or higher end of the scale for that crime?

-- the defendant's criminal record, particularly for similar offenses.

-- effect on the victim. Did the defendant knew the victim was particularly vulnerable, e.g., a child, disabled, or elderly?

-- some states allow enhanced or stiffer sentences if the crime was committed with a deadly weapon.

-- some states allow hate or bias to be considered.

-- the defendant's knowledge of the risk of harm his behavior presented. In the negligent homicide case of a man who drove drunk and killed two teenage girls, the judge put great weight on the defendant's history of drinking problems and his knowledge of the risk he created by driving drunk. Who knew the risk better, the judge reasoned in imposing the maximum sentence, than an emergency room doctor?

-- genuine expressions of remorse. A defendant who refuses to accept responsibility and express regret for his actions may not fare as well as one who expresses remorse. Sounds reasonable. But the judge may not impose a harsher sentence simply because the defendant continues to maintain his innocence. Likewise, the judge may not increase the sentence just because the defendant has chosen to invoke his constitutional right to remain silent.

This situation often arises with convicted sex offenders placed in treatment programs, where refusal to admit guilt is considered failure to cooperate in treatment. Most courts hold that sentences cannot be increased or suspended sentences revoked on those grounds.

-- other factors specific to the case. For example, in sentencing a legal secretary for embezzlement, the judge considered the degree of trust the employer placed when hiring her -- he knew she'd been convicted of embezzling from a law firm in another state, but accepted her explanation that she'd been motivated by financial need and the desire to leave an abusive husband, and offered her a second chance. Her abuse of trust, and questions about whether the money had been spent or hidden, triggered the maximum sentence.

Sentences often include court-ordered restitution for victims' expenses, court costs, costs of cleaning up meth labs, and reimbursement to the State Crime Victims' Compensation Fund for funds paid to the victim. A defendant's payments to the victim are made through the court to avoid direct contact. Restitution has become a larger element in sentences as courts seek to recoup their costs and as judges recognize the power of a financial obligation.

Some victims want an apology as much as anything else. Others disbelieve anything the defendant says and resent any attempt to contact them. A man who broke into a house at night to call police about an accident (in the days before cell phones) and later went back to apologize found himself physically thrown off the property. Judges who followed a short trend of ordering defendants to write letters of apology have learned to be very careful, and most have given up the practice.

Some states have a "three strikes" or "career offender" policy, increasing a defendant's sentence for his third felony in a specified time. Sex offender sentencing may also involve "persistent offender" characterization and enhanced sentencing.

What about plea agreements? The prosecutor and defense counsel may negotiate a plea agreement. Typically, the prosecutor agrees to recommend a specific sentence in exchange for the defendant's agreement to plead guilty to some or all of the charges, or to lesser charges. In some cases, the prosecutor may agree to simply not oppose the defendant's request for a particular sentence. But plea agreements are not binding on judges, and it's not uncommon for a judge to reject an agreed-on recommendation and impose a stiffer sentence. Defendants are now advised, usually in writing, that a particular sentence is not guaranteed, and that the defendant may not withdraw the plea if the judge rejects the recommendation. Judges typically question defendants before accepting guilty pleas, and may refuse a plea if the defendant denies guilt or does not appear to understand the process. A judge may also refuse a plea if he or she believes the seriousness of the case does not warrant dismissed or reduced charges.

Some states require signed waivers or plea agreements. A typical agreement includes the defendant's acknowledgment that:

-- the plea is voluntary and is not the result of force, threats, or promises;

-- defense counsel has explained the right to trial and the effect of waiving that right; and that he or she:

-- is satisfied with the services of defense counsel, has been properly represented, and has had ample time to prepare a defense;

-- is not suffering any emotional or mental disability and is not impaired by drugs, alcohol, or prescription medication; and

-- fully understands what he or she is doing.

Many states allow a defendant to withdraw a plea before judgment is entered on a showing of "good cause," such as the judge's misstatement of the maximum sentence possible or the defendant's lack of proper mental capacity. Pleas may be withdrawn after judgment if new, exculpatory evidence emerges.

While the public sometimes disparages plea agreements, agreements save time and money in a heavily-pressured judicial system. Prosecutors trade the risk of an acquittal for a certain conviction, and defendants exchange the risk of conviction for time and liberty. Some states limit the offenses in which agreements may be made. For example, New Jersey limits plea agreements in cases of driving under the influence of drugs or alcohol. Increasingly, victims are given a more active role in plea negotiations.

Pre-sentence investigations and reports: In most felony cases, after the jury convicts or the judge accepts a guilty plea, the judge orders a pre-sentence investigation (PSI). Reports are usually prepared by the probation office, although the department name varies from state to state. Investigation may take several weeks, or longer. The investigator typically checks for previous convictions, both in-state and elsewhere, as well as dropped charges or acquittals. In some states, juvenile charges and convictions are also included. Victims and co-defendants are interviewed. A psychiatric evaluation may be ordered -- or a sex offender evaluation in cases involving predatory sexual assault. Relevant medical records may be reviewed. Victims' losses or expenses are calculated. The PSI report may include treatment recommendations. The defendant is allowed to review the report with counsel and rebut its statements.

Presentence hearings: Typically, the judge holds a public hearing to review the PSI with the attorneys and defendant, hear testimony from victims, witnesses, relatives, and other persons, and hear argument on sentencing recommendations. The defendant may choose to speak or remain silent. The judge may also receive and consider written letters. Sentences are announced in open court, that is, publicly.

Review: In some states, sentences are reviewed on appeal. Others have sentence review boards, appointed commissions made up of judges, lawyers, and citizens. Death penalty conviction are automatically appealed.

In future columns, I'll talk about the death penalty, parole, probation, deferred and suspended sentences, juvenile sentences, and creative sentencing.

A 1984 graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz lives, writes, and practices law in northwest Montana. If you have a question about a legal issue in your fiction, please browse her website, www.lawandfiction.com or email her at leslie@lawandfiction.com.

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