05 January 2005

Sentencing By Status

The NYTimes ran an article discussing criminal sentencing in Virginia and the use of status as a basis for punishment rather than the offense itself. Both TalkLeft and Grits for Breakfast commented on this and Waddling Thunder (via email) asked me if I have any comment.

I do. I'd planned on posting on this earlier but got involved in trial prep.

The problem with the NYTimes article is that it seems to assume that the choices are between freedom and imprisonment. It's not quite that simple.

Here's a link to the sentencing worksheet for possession of a schedule I / II drug. If you go to Section D "Nonviolent Risk Assessment" you see the section about which the NYTimes dedicates most of its article. What this section is about is whether or not the defendant should be recommended for alternative programs. Now look at the top section "Ineligibility Conditions":

As you'll notice, under the very first condition, if the person is not already supposed to be incarcerated this section will not even apply to him. Incarceration is already recommended by an earlier section; all this section does is offer guidance as to whether the judge should depart from the recommendation and impose an alternative program. By taking the recommendation of this section the judge could either increase or decrease the punishment.

Of course, to understand this you must understand that probably about half the time the alternative is worse than the offered punishment. There are three post-trial alternatives in my jurisdiction: Detention Center, Diversion Center, and Day Reporting Center. Detention Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a more intense program which isn't quite a boot camp program. Diversion Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a less intense program with counseling and eventually work release as an effort to transit the defendant back to the real world. Day Reporting Center is basically drug court without the weekly involvement of the judge. It lasts a year and, at least in the beginning it has daily screenings and counseling. Mistakes lead to increasing sanctions (jail time which does not count as time served) and the program can ask the judge to remove the defendant and make him serve his suspended time; many defendants do not complete this program. Entry into any program subject to acceptance by that program and they will reject those who have mental issues or who have certain types of convictions (typically crimes of violence or drug distribution convictions)

Judges typically mix the programs or jail time with the programs. One popular thing to do is to order the Detention Center followed by the Diversion Center. This means probably 12 months and whatever time the defendant must spend in jail waiting for an opening in the program; at times the wait to get into each program has been as much as 4 months (more recently this seems to have been reduced to a month or so). All of this is dead time - it does not count against any time the judge has suspended over the defendant's head. Another common combination is Diversion Center combined with Day Reporting Center; 6 months dead time incarceration combined with a year of what amounts to super intense probation. Some judges seem to miss the "alternative" part of alternative sentencing altogether and sentence jail time followed by one or more programs.

A first felony conviction event usually comes with a recommendation of probation. A first time possession with intent to distribute starts with a 7 month sentence and often this is what the judge imposes. Often, a second, third, or even fourth felony conviction can carry a recommendation of a year or less (caveat: not talking about violent offenses just the typical addict record - larcenies, check forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence serving 85% of the sentence imposed is often forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence (of which 85% is served) is often an imposition of less time. Of course, we all figured this out some time ago. Thus we only ask for the alternative disposition when the client requests them and typically a client will not ask for alternative programs if he thinks it will delay his release.

In the case that a defendant wishes an alternative program the NYTimes is dead on in stating that status is used as a determining factor. The offending section is:

When this sheet was added to the sentencing guidelines I think every defense attorney I know had the same reaction as the NYTimes: that section is clearly unconstitutional. And we told the judges as much. I can clearly remember standing in front of a judge and illustrating this issue by pointing out that I would start out with 22 points and 31 if court appointed work didn't count as regular employment. Although I never got a one to say it out loud, the judges, through their actions, seemed to agree. I've even had a few prosecutors admit to me that they believe it unconstitutional (off the record).

The net effect has been that this sheet has become the most ignored section of the sentencing guidelines (remember Virginia's guidelines are recommendations and can be ignored). I rarely hear competent prosecutors give it more than a pro forma mention and judges do not claim it as the basis for their decisions. The argument has once again devolved to where it should be: the merits and failings of the individual in front of the judge. I've had a number of clients who do not qualify under this section receive alternative sentences and I've had clients who easily qualify be denied. I cannot claim this is the way it is around the entire Commonwealth but it is my experience in the jurisdictions wherein I practice.

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What's frustrating about the NYTimes article is that it appears that it had a better argument to make under the Rape guidelines. I doubt the status considerations are ignored under those guidelines but I'm not sure exactly how they are applied. I've never had a rape case (yeah, I know, kinda weird but I've just never had one) so I'm not familiar with those guidelines. It would have been interesting if the article had gone over them and their application. However, they are given short-shrift in the last two paragraphs of the article.

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