| Chapter 14
Covering Sentencing
By Ted Gest
The Rise of Sentencing Guidelines
Several states decided to address the problem of variations in sentence lengths with a “sentencing guidelines” framework. Usually drafted by sentencing commissions and affirmed by legislatures, guidelines set penalty ranges based on various factors, including the offender’s record and the severity of their current offense.
How were the numbers calculated? Some commissions put together their collective wisdom, essentially arriving at arbitrary figures reflecting their professional judgments. Others studied how judges had actually been sentencing defendants, and tailored the guidelines to fit historical patterns. Virginia, for example, one of 17 states with a sentencing commission as of 2009, provides judges with a range of recommended sentences that summarizes past practices but eliminates the extreme lowest and highest penalties.
The federal government was one of the earliest to adopt a guidelines scheme. The system that applied to federal caseswas in effect from 1987 to 2005, when the U.S. Supreme Court declared the guidelines advisory. This shift in sentencing policycame about as the result of a 2004 Supreme Court decision on Washington State’s sentencing guidelines. As summarized by sentencing scholar Douglas Berman of Ohio State University, Justice Antonin Scalia’s “dramatic opinion…suggests that any and every fact which increases a defendant’s effective maximum sentence must be found by a jury beyond a reasonable doubt or admitted by the defendant.”
For details of the decision, see Blakely v Washington:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=542&page=296
While some of the early state sentencing guidelines were advisory from the start, four states—Minnesota, Pennsylvania, Washington and Florida—created guidelines systems that were deemed “presumptive.” Judges were required to follow them unless they could provide a rationale for a variation.
Superficially, a particular offense combined with a defendant’s criminal record correlates with a specific sentence. For example, an unarmed robber with a minimal record might expect to serve three years in prison; a second-degree murderer might be recommended for a 20-year term.
Some states provide judges with grids that lay out expected penalties based on the crimes and defendants’ criminal histories. Critics say that grids can lead to mechanical, inflexible sentencing. Virginia uses “worksheets” that try to capture the variables judges can take into account, such as how seriously a victim may have been injured or whether the defendant had a criminal record as a juvenile.
Whatever the system, reporters should be able to estimate a sentence based on publicly available information, at least in states with sentencing guidelines. Of course, the sentence would be based on charge and the resolution, whether a guilty plea or a jury verdict—not necessarily the same thing that was the basis of an arrest.In Virginia, for example, a second offense involving crack cocaine possession may come with a sentencing recommendation of between 12 to 18 months.
Although guidelines in Virginia are advisory, judges follow them about 80 percent of the time, according to the Virginia Criminal Sentencing Commission. Absent some unusual circumstance, it is safe to say that the defendant in the crack cocaine case probably will get a sentence of about 15 months.
Still, because each case is different, journalists should take care to learn the judge’s reasoning for whatever penalty is imposed.
A judge who departs from the guidelines typically will cite an “aggravating” factor pointing to a higher sentence or a “mitigating” factor suggesting a lesser one. Washington, D.C., another jurisdiction with sentencing guidelines, provides judges with long lists of factors to consider. An aggravating factor might be “deliberate cruelty” to a victim, “gratuitous violence,” or premeditation. Mitigating factors would include the level of aggression by the victim or the extent of the defendant’s cooperation with law enforcement.
Defendant cooperation has been a controversial element of federal sentencing guidelines. Critics complain that in many drug cases, a person high up in a drug-trafficking operation can get a big sentence reduction by fingering other key participants, while a “mule” who is involved only in low-level transportation of drugs can get a tougher sentence because he is unable to provide any significant evidence. The mule might end up serving more time than the trafficker. Before the Supreme Court made the federal sentencing guidelines advisory, judges complained that their hands were tied.
Sentencing Options
Three-Strikes Life Terms
So-called “Three Strikes and You’re Out” laws were a popular variation on mandatory minimum sentences in the 1990s. The availability of extended prison terms for career criminals had been on the books in many states for decades, but there still were notorious cases that raised complaints of “revolving doors” in which a suspect would repeatedly be convicted of felonies, and released every few years only to commit new crimes. (Recidivism rates are difficult to calculate with precision, but a widely used figure from a 2002 U.S. Bureau of Justice Statistics report is that about two-thirds of convicts released from state prisons are arrested for new crimes within three years.)
In 1988, as national rates of reported crime were increasing, partly because of violence among drug traffickers, Seattle talk radio host John Carlson conceived of the “three strikes” slogan. He used baseball terminology to signify that a conviction on a third offense would produce a life prison term. Helping to popularize his proposal was Ida Ballasiotes, whose daughter had been abducted and stabbed to death by a repeat criminal. She later was elected to the state legislature. After the idea won support and financial backing from the National Rifle Association, Washington State voters overwhelmingly enacted “three strikes” in a 1993 referendum.
The month after Washington’s voters went to the polls, police in Petaluma, California, found the body of 12-year-old Polly Klaas, who had been abducted from a slumber party in her bedroom. Richard Allen Davis, who was arrested for the crime, had been released after serving half of his stated term in a kidnapping case under California’s determinate sentencing law, after time was subtracted for good behavior in prison.
Marc Klaas, Polly’s father, worked with Mike Reynolds of Fresno, Calif., whose 18-year-old daughter also had been killed by a career criminal, to promote an even harsher version of three strikes. Just about any felony, not necessarily a violent crime, could count as the third strike that would trigger a life sentence. California voters approved the measure in 1994.
About half of the country’s state legislatures passed “three strikes” statutes in the 1990s, supplementing the “habitual criminal” laws that already had been enacted in many places. After President Bill Clinton backed three strikes in a State of the Union address, Congress adopted it for some federal offenses.
“Three strikes” laws led to many long prison sentences. So did sentencing guidelines in many states.
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