28 June 2006

The problem with truly discretionary sentencing guidelines

For those of you who don't know, Virginia's sentencing guidelines are discretionary. Now, I don't mean discretionary in the federal sense where all the departures downward are rejected by the appeals courts and all the departures upward are rubber stamped. No, they are truly discretionary and the only time the judge has to answer for them is when she has to go back before the General Assembly every so many years, hat in hand, and ask for her job back.

Generally, I am content with this system. Departures are relatively rare. The one thing I notice is that I've never seen downward departures take more than 2 years off a recommended sentence while upward departures are almost universally massive.

Case in point: A car-jacker is recommended to get between 7-12 years in prison. It's a nasty crime and he definitely deserves the upper end of the guidelines - maybe even a departure upward by a few years (let's say up to 20 years). The judge allowed the prosecutor to put on evidence of a murder charge the defendant is facing, but which hasn't gone to trial yet. Then the judge says the magic words for the record: "I won't consider the evidence of the murder charge in sentencing." Gotta make sure that's in the record because otherwise there might not be sufficient cover for the appellate courts to say she didn't consider it. And why would there be concern that the appellate courts are going to need cover to uphold this sentence? Because the judge then departed upward 31 years.

Yeah, she never gave that murder charge a second thought.


Anonymous said...

I'm not a lawyer, just a college-educated taxpayer, but how can the state present evidence of "prior bad acts" without a conviction or guilty plea on those prior acts? Where is the due process in that? This sounds like a great new way to save money in our criminal justice system. Mike Nifong can just wait for one of those lacrosse players to get busted with a bag of weed and then get him sentenced to 20 years in prison on the basis of those "prior bad acts" that he will probably not be able to prove at trial.

JD Byrne said...

Welcome to life in the federal court system! Except that in federal court the district court judges don't have to intone any magic words before slamming a client based on unconvicted conduct.

Anon - the so called "real offense" model is the driving force behind the Federal Sentencing Guidelines. It's not uncommon to have a defendant acquitted on some charges that are then used against him at sentencing for whatever charges he was convicted of.

Tom McKenna said...

It's actually a simple matter of fairness to both parties in a criminal case: a defendant gets to put on all kinds of mitigation evidence that can't really be tested, such as mom testifying about his terrible childhood, the fact that he was dropped on his head several times; the girlfriend testifying that she and the kids will starve, etc., etc. It's all done not by a strict beyond a reasonable doubt standard of proof, but by looser rules of evidence that generally allow for copious amounts of hearsay.

Since the idea of a sentencing hearing is for the judge to learn all about the defendant, this wide latitude for mitigation evidence is appropriate. Likewise, the state gets the opportunity to demonstrate that maybe this guy is not such a friend of puppies and flowers as the mitigation evidence suggests.

The judge sifts it all out and fashions an appropriate sentence. Unless you believe that judges are all nincompoops, and just want to slam defendants, and can't understand that sentencing evidence is less reliable than trial evidence, the system actually lets both sides fairly present facts and circumstances relevant to a fair determination.

Or, Mr. Anon, perhaps you think that only the defendant should be able to present sentencing evidence and that the judge should not know that the defendant has been implicated in other serious crimes?

Ken Lammers said...


Let's assume you are right and it's only about giving the judge entire picture. It's still wrong to introduce evidence of an alleged crime which has yet to go to trial. It would be malpractice to put on your defense during the sentencing hearing. Thus, the prosecutor gets a free shot, without any counter by the defendant. In that way it's even less fair than federal sentencing.

Anonymous said...

"Or, Mr. Anon, perhaps you think that only the defendant should be able to present sentencing evidence and that the judge should not know that the defendant has been implicated in other serious crimes?"

I do not think that at all, I just think that this provides a clear end-run around due process. It sounds to me like the government can suspect me of murder but have inadequate evidence to convict me beyond a reasonable doubt. They can then pick me up on an outstanding bad check warrant, and send me to prison for 30 years because the judge believes I committed the murder even though the state has only proved beyond a reasonable doubt that I wrote a bad check. I understand that this scenario is unlikely, but the fact that it seems to be possible in a system that is administered by fallible humans is disturbing.

The case Mr. Lammers pointed out seems a clear case in which a judge is abusing his sentencing discretion to subvert due process. If the state can present evidence of crimes that have not been proven for the purposes of sentencing, then the judge should not be able to depart upwardly from the guidelines. Give the guy the prescribed maximum for the crime he was convicted of. If the state has the evidence to convict him of murder in an actual trial, then they should do so (that is their job, after all).