| Chapter 14
Covering Sentencing
By Ted Gest
Prosecutors and Plea Bargains
No matter what term lengths are stated in the law, the reality is that the sentencing system is largely controlled by prosecutors, who have vast powers to decide what charges to bring in a given case. (For example, a robber carrying a pipe with crack residue who uses a gun to rob an elderly person near a school could be charged with a number of different crimes involving drugs and guns.)
A prosecutor decides how many charges to bring and, in many circumstances, whether they are felonies (the more serious category of crime) or misdemeanors (the lesser category). The difference can be crucial: a felony conviction that counts as a third “strike” could lead by statutory mandate to a life prison term.
Criminal defendants in the United States are entitled to a trial by a jury of their peers, but a trial can be a complex, expensive process that is used mainly when there is significant doubt about who committed a crime. A vast majority of criminal cases—97 percent by one Justice Department count—end with guilty pleas.
See: http://www.ojp.usdoj.gov/bjs/cases.htm#findings
In a given case, a prosecutor may bring a collection of charges that together may carry maximum penalties under the law, totaling, hypothetically, 40 years.
The prosecutor may tell the defense that he would accept a guilty plea to one of the charges that carries a maximum penalty of 10 years. The prosecutor may hope that the defendant views this as a bargain, providing certainty about the outcome as opposed to the many uncertainties that can crop up in a trial. The defense must weigh whether the prosecution has strong enough evidence to sustain a conviction on each count if the case actually went before a jury, which can vote to convict only if there is evidence beyond a “reasonable doubt.” A defendant might also plead guilty if he is likely to be put on probation and would not be jailed pending trial.
The plea bargaining process is one reason a prosecutor may welcome a news story that emphasizes the maximum possible sentence in a case, to scare criminals into thinking that they are likely to receive the maximum penalty. On the defense side, an attorney will advise a client how much time is actually likely to be served in the jurisdiction involved under a variety of possible outcomes.
For more information on the process of plea bargaining, which is also known as “sentence bargaining” when it involves a promise to impose a particular penalty, see chapters 8 and 10 of the Criminal Justice Journalists Guide to Covering Criminal Justice, at www.justicejournalism.org/crimeguide.
If a defendant is convicted in a trial, the court must consider all counts on which there was a conviction. Sentences may be ordered to be served consecutively (one after the other) or concurrently (at the same time). That could mean, for example, that a 10-year term is imposed on each of three counts but the terms are served simultaneously, not back to back. The difference is vast: 10 years maximum vs. 30 years.
The difference between consecutive and concurrent sentences can be confusing. If there is any doubt about what a judge has ordered, ask the judge directly or a court clerk to make sure there is no misunderstanding about the actual sentence.
Journalists should consider not only the current case but also whether any charges against a defendant in another jurisdiction might affect the sentence. For example, a 10-year sentence in the court you are covering might be just a small fraction of a likely sentence in a case against the same defendant pending in another state.
Sentences after a jury verdict are likely to be longer than those agreed to in a plea bargain because they can involve many more charges. That means defendants may be taking a chance by arguing their case to a jury. A few states still allow juries to recommend sentences that judges may be unable or unwilling to reduce. Because jurors tend to impose harsher sentences than judges, criminal jury trials may be uncommon in those places. Defendants in those jurisdictions may go to great lengths to avoid being sentenced by a jury.
Once a plea deal has been negotiated or a jury verdict is in, a pre-sentence report will be prepared, usually by a probation agency. This involves a review of the defendant’s criminal record, family situation, and educational and work background. The agency may also use risk assessment tools to help assess how likely a defendant may be to commit new crimes if not in custody. Defendants may collect their own materials in addition to those in the official pre-sentence report, asking others to write to the judge in their support.
Pre-sentence reports normally aren’t publicly available, but reporters covering newsworthy cases should be alert to issues that may arise when they are compiled. One of them is the extent of a criminal record. Despite some improvements in record keeping, many state databases remain vastly incomplete. For this reason, it may become clear only during a pre-sentence investigation that a defendant’s record is more serious than it appeared when a plea bargain was agreed to. That may influence a judge, who usually considers the risk that a defendant will commit more crimes.
The formal sentencing typically occurs several weeks after a guilty plea or jury verdict, so that the sentencing report can be prepared.
At the proceeding, a judge will ask the prosecution for a recommendation, and the defense for a response. The defendant is allowed to speak, and the judge then pronounces a sentence. Depending on the judge and the case, sentencing can take only a few minutes in assembly-line fashion or much longer, in controversial cases or those involving multiple defendants. Although usually routine, sentencing proceedings can sometimes result in dramatic stories if the participants choose to disclose new information or express their feelings about a crime.
In the past, aggressive defense attorneys have been able to reduce many sentences by bringing in experts who would argue, for example, that a defendant suffered from a mental condition that when treated could prevent future criminal behavior. That and other favorable evidence might persuade a judge to grant probation or a short term behind bars.
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