The Law of Trespass

In Virginia, if you only read the statutes we seem to have a gap between trespass and breaking and entering (also known as statutory burglary). Under the statutes, breaking and entering (B&E) requires someone to enter a residence or business with the intent to commit a felony or an assault and battery or any type of larceny. Merely entering the residence is not enough to convict a person of B&E. This makes some sense as B&E is a felony and we don't want to convict people of felonies for all sorts of dumb reasons they might go into a place where they are not welcome (as long as they intend no harm). On the other hand, when someone goes into a place they are clearly not welcome we do want to convict them of trespass. However, the trespass statute (18.2-119) allows conviction only if the person has been banned from the property (either orally or in writing) or there is a no trespassing sign. In between the two there is a problem area that we run into far more often than I would have expected.

The two scenarios which we run into the most seem to be (1) the Goldilocks Scenario and (2) the Intoxicated Idiot.

1) The Goldilocks Scenario: We get this every so often and I'm still surprised by it. The residents of a house discover that a homeless guy is sleeping in the shed or the garage or (had a couple of these lately) wake up to find someone on the couch in the living room. Another variant of this is the landlord that goes to check his empty property and finds someone in it. In all these cases the person has not shown any intent to commit a crime beyond trespass and therefore cannot be convicted of B&E. However, he has never been banned from the property either and therefore cannot be convicted of statutory trespass.

2) The Intoxicated Idiot: Generally, this is the guy who, at two in the morning, is so drunk or high that he goes to the wrong house. Sometimes it's the next trailer over, but often he goes back to the house he grew up in (which is now lived in by an entirely different family). Quite a few of these fall under statutory trespass because person in the property yells at the guy to get out and the guy doesn't. However, in a fair number of these the lawful resident hides in the bedroom and calls the police or goes out to confront the intruder but never actually utters the magic words "Get out!" Again, there's no B&E here and, without the active banning, no statutory trespass.

So, what's the solution? Common Law Trespass. You see, Virginia Code 18.2-119 didn't set out to deal with all trespasses. It only deals with "Trespass after having been forbidden to do so." The common law is where we find the formula for dealing with other trespasses.

To be clear, under the common law not all trepasses were misdemeanors. The test as to whether an act was a common law criminal trespass can be found in Henderson v. Commonwealth, 49 Va. 708 (1852):

It is abundantly clear that the mere breaking and entering the close of another, though in contemplation of law a trespass committed [by force of arms], is only a civil injury to be redressed by action; and cannot be treated as a misdemeanor to be vindicated by indictment or public prosecution. But when it is attended by circumstances constituting a breach of the peace, such as entering the dwelling house with offensive weapons, in a manner to cause terror and alarm to the family and inmates of the house, the trespass is heightened into a public offence, and becomes the subject of a criminal prosecution.

This case, in which Henderson went onto the porch of the house and shot two dogs, seems to set out some basic parameters. Coming into the "close" is not a criminal trespass and can only be addressed civilly. The "close" is land which is surrounded by a boundary of some sort. This is not to be confused with curtilage which is the area and buildings immediately surrounding a house and used in everyday life. A close on a farm could include acres or miles of fenced in property which is far outside the curtilage.

On the other hand the same case states that when "the place where the entry is made is a dwelling house, as reason would suggest, and the peace of those abiding under the sanctity of their home and the security of their castle, would strongly require, is a most important circumstance to be taken into consideration in the aggravation of trespass [within the close] into a misdemeanor." Since this trespass actually occurred on the porch, the curtilage would also seem to be included as part of the sanctity of the home and security of the castle. It's arguable that the case only meant to include the porch as part of the residence or that maybe it counted the smoke from the firearms floating into the residence as entry into the actual residence. In any case, at the very least criminal trespass is trespass upon the residence.

The second part has to do with breaching the peace. Here we can look to Graham v. Harless, 153 Va. 228 (1929): "It is true that a mere trespass upon real or personal property, which is also the subject of a civil action, is not always a crime at common law; but it is a crime at common law if it amounts to a breach of the peace, or if it tends to or threatens a breach of the peace." Of course this is a civil case, but we see the same thing repeated in a more modern criminal case, Snead v. Commonwealth, 212 Va. 803 (1972): "Our examination of the authorities makes it clear that unless a trespass upon land or premises amounted to a breach of the peace or tended to or threatened such a breach, the trespasser was not criminally liable at common law."

An actual breach of the peace is fairly easy to establish; it's "an act of violence or an act likely to produce violence." Taylor v. Commonwealth, 11 Va. App. 649 (1991). In other words a breach of the peace is everything from a confrontation which would likely lead to violence all the way up the scale of violence to murder (most often probably a battery).

As for something which would tend to cause a breach, that would seem to be anything which could reasonably be thought to lead to a confrontation that could lead to violence. This would include things such as entering a residence without permission.

Having established that common law trespass fills the gap, we now have to establish what punishment attaches. Like most common law offenses, it would fall under 18.2-12: "A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor." So it would carry exactly the same punishment as statutory trespass, up to 12 months in jail and/or up to a $2,500 fine.

Common Law Trespass

Elements:

(1) Enter into the residence of another, AND
(2)(a) Breach the peace, OR
(2)(b) Act in a manner tending to breach the peace.

Punishment:

Up to 12 months in jail and/or up to a $2,500 fine.

What Makes a Good Drug Court?

Drug courts are all the rage in the current era. The legalize everything crowd loves them because we don't punish people for being addicts.  The fiscally minded love them because they cost a lot less than incarceration.  The defendants love them because they don't have to go to jail.  This is not to say that there aren't those who disagree with these programs. Generally, these people believe that wrongdoing should be punished - not coddled.


So, what do I think of all this? I think drug courts can be good programs.  "Can be" is the pertinent phrase in that statement. I've seen a few drug courts in operation and some are serious efforts to heal a person in need. Others are just there as a way to avoid sending people to jail. You can usually tell the difference by looking at how many people are in the program, how well the program is staffed, how many people fail out, and what the recidivism rate is. If there are 100 people in the drug court, 6 people staffing it, no one has been removed for the last 2 years, and half the graduates are back in court within two years, it's just an excuse not to pay to house individuals at the local jail.


What do I think makes a successful drug court? Glad you asked.


1) To begin with, if the program is actually holding its participants to a standard, a substantial percentage of them will not graduate. Let's be clear here. Drug court is a behavioral retraining program. It is openly manipulative and meddles in the lives of the individuals within it. A good program will use both carrots and sticks to train individuals in proper societal behavior. It will continue this retraining for a long enough period of time (at least a year) for it to supplant previously learned and chosen behavior.  


The people who come into the program will be naturally resistant to all of this. To begin with, we as Americans practically have it coded into our DNA that my business ain't your business; we don't cotton to people messing in our lives.  Additionally, drug users are usually steeped in trained lying behavior and can be very manipulative. A lot of times these people have been through short term "drug treatment" programs and been able to maneuver and lie their way through them without any real change in their lives. All of this combines to often make the first couple months in drug court not a pleasant experience for either the participant or the staff. 

This early part of drug court is where most of the failures are likely to occur. Anyone who has been to a few drug court meetings has witnessed an early participant stand up and swear she is 100% clean, hasn't used in months and she doesn't have a clue how she turned up hot for benzos and oxys on three separate drug tests last week.  The lie doesn't help her (usually it gets her a longer jail sanction), but she will not admit. This battle can take some time, but usually after about two months in the program (not counting jail sanctions) there comes a time to fish or cut bait.  At that point if, despite sanctions and explanations, the participant isn't making an effort to be clean, complaint, and honest - or at the very least two of the three (many will never admit their early failings) - the program needs to let her go and try the next candidate.


2 )  Size.  It's hard to say that there is an absolute optimal size for a drug court, but smaller is more likely to be better.  The larger the drug court is the easier it is for people to slide through and the harder it is to discuss everyone at staffing meetings. If there are 100 people in the drug court there's only going to be time to discuss the screwups. A vital part of drug court is rewarding good behavior and if all the court's allotted time is spent dealing with the participants who stumbled there won't be time to praise and reward those who deserve it.  This is a subtle but harmful failing. It changes the message from doing right is a good thing (have a reward) and doing wrong is a bad thing (here is your punishment) to simply doing wrong is a bad thing (here's your punishment). They already knew this message coming into drug court and it didn't stop them. A large part of the court's purpose is to try to train the participants to want to do good things in order to have them purposefully move in a direction away from the bad. If that's not happening the court is limping along.


The difficulty with drug court size is that no matter what size you limit it to there will always be other people who appear to be good candidates. That person's attorney will, with justification, ask why his client can't get in when John Smith got in just last week. It's not a satisfying answer to say "Because we only have 15 slots and they are all filled." Still, you must hold the line in order to keep your program effective.


3) Sanctions / Rewards.  There must be rewards for good behavior. However, you can't go overboard on these. If you could do it, the best way to handle this would be to give those participants who have done well a reward every week: a couple movie tickets, tickets to a local single A baseball game, a coupon for a free meal, &cetera.  Small rewards, given as often as possible, aid in behavioral retraining without raising the level of expectation too high. The goal is to cause the participant to associate good behavior with good things, but not great things, so that once she gets into the world on her own she can achieve good things and not be disappointed when great things don't continually fall into her lap.


The problem here will be fiscal. Unless a drug court is in a rich county, money for rewards will be scarce. Staffers will scrap and beg to get gift certificates and tickets. How successful they are at this endeavor will determine how often rewards can be given out.


On the other hand, sanctions have to be tiered. This needs to happen in two ways. There must be sanctions for failures to complete program requirements outside of turning up hot for drugs.  At  lower levels this will start with community service hours. However, continued non-compliance can rise to a level where the participant must be sanctioned with jail or even expulsion from the program.  The most creative punishment I saw in regards to this was a city which had a mounted patrol and sent those who were not compliant to muck stalls. You could see the look of horror on the faces of people who had lived in the city their entire lives when the judge sentenced them to clean horse stalls. 


The other set of tiered sanctions is for drug use. As a recovery program, use, especially in the early stages, is to be expected.  Sanctions for this should almost always be jail time, starting with two days and working its way up. Of course, expulsion is the ultimate sanction, but only as the last resort.  One thing to be considered in determining this sanction should be truthfulness. If the participant refuses to acknowledge the sanction should be increased. If the participant is evasive the sanction should be increased. If the participant is honest the sanction should be the minimum. The participant should be told very clearly why he is getting the sanction he is. If the participant is lying or being evasive he should be told "You were going to get 5 days, but because you lied you are getting 15." Likewise, if the participant is truthful he should be told something like "If you lied today you would have gotten 15 days, but because you were truthful you are only getting 5." Things like this must be made very clear to the participant and all the other participants observing.


4) Length of Time.  I've never seen a drug court that lasted less than a year and I do not believe that one of less time would be be successful. Anyone who has been in criminal court for any period of time has to develop a hefty dollop of skepticism when it comes to "drug treatment programs." Most are worthless. They may dry a person out, but most of them fail utterly beyond that.  I've never seen a program that lasted less than six months which I thought did anything other than give an excuse not to send a person to jail.  Six months seems to be about where the old patterns of behavior are left behind (this will vary significantly from person to person). The remaining six months are needed to build positive behavior, such as employment or familial skills, and to provide monitored reinforcement against backsliding. Anyone who has seen an addict come out of a program dried out only to watch her slowly fall back into her old ways understands that the second six months is every bit as important as the first six.


---------------------------------


These are the important big factors in a successful drug court. Beyond these there are many smaller factors which are too numerous to list and may vary from locality to locality. However, the four listed above are those which stand at the core of a good program.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : D. Understand Defense Attorneys

D.  Understand the Defense Attorney's Job

Remember, the defense attorney's job is to best represent her client.  This might well involve things which you do not appreciate. Not telling you that the defendant has an identical twin before he shows up as a defense witness is good trial strategy (at least in places like Virginia where there is no witness list requirement), especially after you played hard ball and said the defendant could plead straight guilty and get sentenced by Judge Dredd or take a trial.  Making a legal argument, that you had no warning of, on the day of trial, after jeopardy has attached, is good trial strategy.  Interviewing prosecution witnesses, including the victim, is allowed and a competent defense attorney will try to do it (you can tell the witnesses they can refuse to talk to defense counsel, or refuse to talk with her unless you are present; you cannot tell them they should or must do these things). The defense attorney does not have to tell you that she knows the primary witness in your case, whom you are desperately seeking, has moved to Alabama; in fact, she has an obligation to keep her mouth shut as long as she does not know of any illegal activity involved in the witness' change of address. These are only a few of the defense techniques, stratagems, and obligations which you and your fellow prosecutors will get very mad about.

Be careful about confusing negotiation behavior and trial behavior. A lot of prosecutors have a hard time with this because the vast majority of cases are settled through negotiation which is a semi-cooperative process. It is in the interest of a negotiating defense attorney to point out the weaknesses in your case in order to get a little better deal for his client. This openness comes from an understanding on the defense attorney's part that she is negotiating from a very weak position and needs to try to chip away with any tool she has. However, the second that the decision is made to go to trial - whether that is before the attorney ever spoke to you or after months of negotiation - the incentives are entirely reversed. Defense counsel preparing for trial has exactly zero reasons to tell you her strategy or the weaknesses in your case. She is setting out to beat you and telling you these things would allow you to prepare and possibly to counteract the advantages she has found. Since even a defense attorney preparing for trial is usually defending from a weaker position, she will not give you anything unless required to by law.

So, John Smith, who was in your fraternity in college and graduated from the same law school you did and is someone you consider a friend, pulls a trick out of his hat in the middle of a jury trial and catches you flat-footed. It's entirely legal, but he never gave you clue one that it was coming. How do you deal with it after the trial is over (obviously you fight and scream and argue during the trial)?  Well, if you win you suck it up and drive on. You've got a great war story to tell for years and you can tweak John about thinking he could actually pull that off.  If you lose allow yourself a three day Mad On.  We attorneys are competitive by nature and when we lose we can be quite irrational about it.  Avoid John for the three days, whine to your fellow prosecutors, spend time combing through the code and case law "proving" beyond any shadow of a doubt that Judge Greene should never have allowed that evidence in, drink a few beers, and generally allow your maditude to run its course. At the end of three days get over it, suck it up, and drive on.  John did his job; you did yours. This time he won. He won't the next four times.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : C. Trusting Wrongly

C.  Do not trust wrongly

This is the hardest single lesson to teach prosecutors, young and old. The defense attorney has an ethical duty to disclose everything about the case to his client. EVERYTHING.  If you disclose to the defense attorney the entire setup the local vice cops have in your county and it has something to do with his case the attorney must tell his client. If you tell the defense attorney the name of the confidential informant the attorney must tell his client.  If you tell the defense attorney that the primary witness has moved to Saskatchewan and won't be available for trial the attorney must tell his client. 

Do not put the defense attorney in the position having to choose between his relationship with you, as a prosecutor he will have to deal with many times, and his client, for whom he is an agent. If you are about to (or should) start a statement with, "Look, don't tell your client but . . ." then you need to just keep your mouth shut.  Once you've done that to a defense attorney he has two choices. He can betray his client and keep your confidence or he can hurt his relationship with you and do his legal and ethical duty. The better defense attorneys will live up to their obligation to their clients. And you will get angry at them for your failure.

On the other hand, when a defense attorney tries to get you to tell him something you shouldn't, don't let yourself get get sucked in. When you hear the words, "If you tell me I won't tell my client" you have either been lied to or the defense attorney is offering to act unethically. Obviously, if the defense attorney is lying to you you should not reveal the sought information.  As well, you should neither be participating in nor encouraging unethical behavior. I see this most often in a couple circumstances.

Example 1:  In the middle of discussing the facts of the case the defense attorney says something like, "The CI's not his mother, is it? Client thinks its his mother. I think it's the neighbor. Which is it? Don't worry, I won't tell Client." If alarm bells aren't screaming in your head at this point, you are entirely too trusting and should look into becoming a lawyer who writes wills for a living.  

Example 2:  You're talking to a defense attorney who has approached you about his client testifying against his co-defendants. You say you'd be happy to have his testimony, but you won't promise anything in result for it. The defense attorney pushes you. "You can tell me what the deal will be and I won't tell him. It will give me an idea of whether I should recommend this course of action or not." The unspoken idea here is that his client will be able to go to the stand and testify that he doesn't know what will happen to him after he testifies.  Don't do it.  To begin with, it is not ethical for the defense attorney to refuse to disclose that information to his client (who will inevitably ask). Even if the defendant agrees not to know, you benefit naught from this. Because the defense attorney has an ethical duty to disclose that information to his client, you have to act as though it has occurred and have a constitutional (Brady, Giglio) duty to disclose it to any attorney for any defendant who will be cross examining the cooperating defendant.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : B. Verify

B.  Set a level beyond which you verify anything no matter how much you trust the attorney

Trust but verify. I know it's a hackneyed phrase, but it does represent a certain reality. You must set a level below which you will not apply trust to anyone, even the defense attorneys whom you most trust.

Why?

Well, for a variety of reasons. Foremost among those is that even the most forthright defense attorney is often operating with limited knowledge - usually what her client has told her. 

Example 1: Defense attorney wants a three month continuance of the trial date because her client is going to have surgery next week and will need time to recover. Get proof from the doctor, hospital, etc.  Often, that impending, life necessary surgery the defendant has told his attorney about will turn out to be an appointment to explore the possibility of elective surgery. The defense attorney only knows what her client has told her.   

A good way to handle this situation is to require the defense attorney to get a letter from the doctor's office - which has never been touched by the defendant or his people -confirming the nature and necessity of the doctor's appointment. Without such a letter you will vigourously oppose any continuance on the basis of lack of proof. The reason you put this back on the defense attorney is that she can get a waiver from her client that will allow the doctor to disclose. If the defense attorney can't get her client to sign such a waiver it speaks volumes and leaves the motion without basis. Once the attorney has gotten the letter you can sit down with her and decide what the appropriate course of action will be.

Example 2: Defense attorney approaches you with defendant's grandpa and informs you that he wants to drop the theft charges against the defendant.  This is a situation that you will run into in check and credit card cases more often than you'd care to. Grandson stole Grandpa's checks and wrote over $5,000 around the county until he drained the account and Grandpa figured it out.  Grandpa then goes to the bank and explains to the manager that he didn't write those checks and could he please have his money back. The bank manager tells him that he can't get the money back unless he fills out a police report against Grandson. Grandpa then goes down to the police station and files a report; he then takes the report to the bank and gets money put back in his account. Thus, when the defense attorney is telling you Grandpa is satisfied she is absolutely correct. Grandpa has transferred the theft to the bank and gotten his money back; now he doesn't want to cause family discord by being the reason the Grandson goes to jail.

Defense attorney doesn't know all that background. She just knows that her client introduced her to Grandpa, who now wants to drop the charges. No matter who the defense attorney is in this situation you cannot take it at face value.  However, this time its on you to check into the situation.

Another important reason for trust but verify is quite simply to CYA. If you trust without verification 20% of the defense attorneys word will get around the courthouse that you play favorites. If you trust without verification 80% of the defense attorneys the next thing you know one of the untrustworthy ones will be complaining about you to the judge or your boss. Usually, the judge and your boss know this guy's reputation as well as you do, but it's always possible that your judge played rugby with John Smith on the Clydesdale Steeds and thinks he's a swell guy. Set a standard level and make everyone live with it.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : A. Trust

One of the most important skills a new prosecutor has to learn is how to deal with defense attorneys. It's confusing to most new prosecutors - made especially so because most of them have not done defense work and do not understand what defense attorneys are doing. Consequently, many who have never been on the other side retreat behind the us versus them mentality where everything is black and white, all defense attorneys are evil incarnate, and the defense attorney probably deserves imprisonment as much as his client (same thing happens on the other side, but that's not today's topic). Personally, I find this an unhelpful attitude. However, if you are not going to retreat into such a childish worldview you have to establish certain guidelines for dealing with defense attorneys.

A. Rate defense attorneys on how much you can trust them, not how much you like them.

If you don't learn this lesson very quickly you will get burnt. Then you've learned the lesson whether you chose to or not. Just because the defense attorney has a likable personality and is someone you'd like to swap stories with over a couple beers does not make him trustworthy. Good attorneys are actors; they can smile at your face while telling you that lie which is going to get you fired if you believe it. Likewise, the fact that he's one of 'us' doesn't mean he's trustworthy either; the fact that he's a member at The Traditionary Club, that he's a Grand Presidentiary in the Order of the Golden Silence, or that he is the right prop on the Clydesdale Steeds Rugby Club may mean he's one of 'us', but so was Kim Philby. And, most definitely, the fact that someone is smoking hot and flirts with you does not mean she's trustworthy. Get a clue.

Now, if you're a sane person, how much you like a person probably has something to do with that person's trustworthiness. However, the converse does not necessarily follow. There will be all sorts of defense attorneys whom you will find trustworthy and not be good buddies with because they are much older or much younger than you, have different interests, or you just aren't similar types . Remember that the fact you aren't buddies with someone does not establish that person as untrustworthy.

How then do you determine trustworthiness? Well, one of the advantages of criminal law is that we tend to deal with the same attorneys over and over. It is truly a local enterprise. The people in your office will be able to give you a heads up on pretty much everyone who walks into the courthouse. This is how you will sort out the most untrustworthy. When everybody in the office starts regaling you with stories of how John Smith and Pete Greene have messed people over time and time again you'll know not to trust those individuals. After that it gets more difficult. Most of the time there's no easily discernible line in the sand. After you get past the defense attorneys who are absolutely untrustworthy you will find others who will be untrustworthy as to certain matters. A strange phenomenom which you'll run into every once in a while is the lawyer who will be straight as an arrow in everything else, but will lie like a dog in order to get a continuance. Usually, you'll get tipped about this lawyer by people in your office. Beyond that you are going to have to start making calls on your own. Start out being somewhat conservative and loosen up some over time. Eventually, no matter what you do, you will get burnt by some defense attorney whom you trusted too much while you were in a hurry or not paying enough attention. Don't let that sour your relations with other defense attorneys. Adjust your behavior toward that attorney accordingly and let others know about it.

Finally, the guy to least trust in the courtroom is the one who gets you aside and starts lecturing you. "Let me tell you how things are done in Pitcairn County." Everything out his mouth after that point is either meant to get you to do things he wants or is so blindingly obvious that you would know it after 3 days of practicing in any courtroom. And, he will expect you to give him credit on top of that for having explained the facts of life to you. Put a HUGE black checkmark next to that person's name and do what you think is the correct thing to do anyway. Be prepared if this guy starts telling the judge that he tried to explain the way things work to you. Generally, the answer should be something like, "Well, your Honor, I know Mr. Jones thinks he runs the courtroom, but personally, I like to let the guy in the black robe feel like he might overrule Mr. Jones." Adjust the tone and language to adapt to your particular judge.

The Signing of the Declaration

How to Prosecute: (1) Try to Be Consistent; Realize You Cannot

Guideline Number One: Be consistent as possible, but recognize you'll never be consistent.

You'll hear a lot of defense attorneys telling you that your job is to seek justice. This is absolutely correct. However, while I agree with the concept of seeking justice, I suspect that we will disagree as to the meaning of that phrase. When a defense attorney says it to you it generally translates as "let my guy go" or "give my guy a better deal." When I say it, I mean be as consistent as possible in your application of the law (particularly in sentencing).

You will exist in an atmosphere where all sorts of things will limit the range within which you can operate. Among these will be sentencing guidelines, office policies, and the proclivities of your judges. Nevertheless, there will be always be decisions that you have to make on your own. Even if you are just the new guy trying traffic offenses there will be some things that you will be making the call on. Set guidelines for yourself.

Notice that I said guidelines not commandments. These are not carved in stone edicts from God. You will vary from these guidelines. How often you vary will depend on your personal sense of equity, but if you never vary from them you have either set them too loose or you are simply not ever considering mitigating facts. Say you are the traffic prosecutor for your county and the highway through the county has a speed limit of 55 mph. Reckless driving by speed (class one misdemeanor up to 12 months in jail and/or $2,500 fine) is 20 mph over the speed limit. You set your guidelines at 75-80 mph and no previous speeding related offenses within 10 years gets driving school and reduction to simple speeding (fine only); 75-90 mph gets a $500 fine and suspended jail time; 91-100 mph gets 1 day in jail for every mph over 90 and a $750 fine; and 101 and above gets 30 days in jail and a $1,000 fine. Most of the time you will ignore whatever excuse (he had to get to a restroom, her speedometer was broken, he accidentally engaged the nitro, &cetera) and simply follow your guidelines. However, there will be times you vary from the guidelines either way. Defendant was driving 96 mph trying to get his wife to the hospital for the birth of their child and Officer Newbie pulls them over and gives them a reckless driving summons; you should probably not throw that Defendant in jail. On the other hand, if Mary is in court for her 4th reckless driving summons in six months (each time at 85 mph and because she was late for work) you should probably give her at least a weekend in jail.

Applying the same guidelines to the vast majority of situations means that people who do similar things will be treated in a similar ways and this is important to justice. People should be treated the same if they did the same thing. The guidelines you set also have the advantage of predictability. Defense attorneys will approach you as a known quantity and be able to advise their clients appropriately. "You locked your dog in your house four hours earlier and you were trying to get home before she messed on your brand new carpet? I'm sorry, but Prosecutor Smith isn't going to drop your reckless driving at 92 miles per hour because of that. The punishment for driving that fast is . . ."

Understand, you will never be entirely consistent. There are too many variations in circumstances of arrest. You will also make mistakes. Defense attorneys will constantly push you. The clever ones will try to use your guidelines against you once they've figured them out. "You never send anyone to jail who hasn't gone over 90 mph; it isn't fair to send my lady to jail at 86 mph." The really clever ones will remember instances in which you varied from your guidelines and try to use those as wedges to get their clients better deals. "Last month you didn't send that Smith guy to jail and he was driving 107 mph. My client is a college student just like he was and should not go to jail either." Of course, the attorney won't mention the facts which made the Smith case unique and different from his client. And it is unlikely that you will remember the facts of the Smith case. Stick by your guidelines unless your examination of this particular case tells you that you should deviate.