Sentencing

At some point in the proceedings you may face a judge for sentencing as part of a plea bargain or upon a conviction after trial. Or, you may simply want to know what you are facing as you enter the criminal justice system, what sentence are you facing for the crimes charged or under investigation? What sentence are you likely to get?

The Evolution of Sentencing Theory

Up until the 1980's sentencing in criminal cases was fairly simple. You faced a judge, told your story, and the judge decided your sentence. If it was a serious crime you could receive 10-life and have no idea when you would get out, the decision being left to a parole board. This was known as "indeterminate sentencing". The actual duration of the sentence was undetermined and left to the discretion of a parole board. Many people have learned about parole boards from television and movies and are familiar with the scene of an inmate having his annual parole hearing and being denied. What they don't know is that this system was scrapped almost entirely across the United States in favor of a completely new system that is more fair and more predictable.

One of the lessons learned from the old parole system was that people of color, people of means, people with connections, all received different sentences for the same crimes. The system was a mess. And so in the 1980's a sentencing revolution took place across the country and most states (and the federal government) adopted a new model for sentencing. In Washington State, this legislation was known as the Sentencing Reform Act (or SRA) and it has been in place since 1981.

How Sentencing works under the SRA

Under the SRA, a new determinate sentencing model is used and it is based on a sentencing "grid". The grid is just like a spreadsheet, with columns spanning across the top and rows running down the left side. Along the top (horizontal) axis is the defendant's Offender Score. Along the left (vertical) axis is the Seriousness Level of the crime being sentenced. You simply take the Offender score and the Seriousness Level and you get to a box in the grid, and there is your sentence. The sentence specified in the grid is typically represented as a range of months (e.g., 36-48 months). This is called the "standard range" and the judge can sentence you to anywhere within that range.

Offender Score is based on the number of felonies that you have at the time of sentencing and the grid goes from 0 to 9. The Seriousness Level of a given offense is defined by statute and is represented by 16 Levels ranging from Level I to Level XVI. For example, suppose a defendant has two "points" for his Offender Score and is being sentenced for a Level VI offense. The grid shows that the sentence for that combination is 13 to 17 months. A defendant with 5 points facing sentencing on a Level XI offense is looking at 120-158 months. In this manner sentences can be reasonably predicted for any given offense or individual.

But its gets more complicated as you learn more about the system. A judge can sentence you to anything in this standard range and you would not be able to appeal your sentence. But a judge isn't bound to stay within the standard range. In exceptional cases, a judge could depart from these guidelines and impose what is known as an "exceptional sentence". The judge can go above the standard range (an exceptional upward departure) or go below the standard range (an exceptional downward departure). In such cases, the opposing party may appeal the sentence and a reviewing court could overturn the sentence and remand the case for re-sentencing within the appropriate range. Exceptional sentences are rare but exist for those cases where extraordinary facts support a departure from the standard range.

Determinate Plus and ISRB: The new "Parole" System

It's important to note here that sex cases are treated differently. For certain serious sex crimes (e.g., Rape of a Child), a different sentencing model is used. Although this model is euphemistically referred to as the "Determinate Plus" model, it really is a variant of the old indeterminate, parole board model. When you are sentenced on a Determinate Plus crime, the same grid is still used to calculate your sentence, but it is used very differently. The Offender Score and Seriousness Level are still consulted, but instead of providing a standard range as parameters for the sentence, the resulting cell in the grid provides the *minimum* sentence to be imposed. The maximum becomes the maximum available under the law. Since Class A felonies all carry a potential life sentence, a qualifying Determinate Plus Class A felony conviction will result in a sentence that looks just like the old indeterminate sentences prior to the 1980's: 10-to life. But in this case, it is the Indeterminate Sentencing Review Board (ISRB) that determines when you are released.

One of the requirements of release by the ISRB is the successful completion of sex offender treatment in prison. The biggest problem posed by this system is for the man who is innocent and winds up being convicted of a Determinate Plus Class A felony crime. This poor soul will never successfully complete sex offender treatment if he continues to maintain his innocence and will therefore never get out! It's essentially a one-strike system for certain people.

How Sentencing Works in Court

At a sentencing hearing, the governement starts off by making an oral pitch to the Court for whatever sentence it seeks. They may present testimony from alleged victims or family members, or read letters from them. They will often submit a sentencing memorandum in advance of the hearing supporting the particular sentence they seek. During their presentation they may reference things stated in their memorandum, but mostly it's an oral presentation asking for some sentence.

The defense then gets its opportunity to make its pitch and again may present the testimony of relatives in court or by letter, and the defense will have also submitted its own detailed sentencing memo to the Court in advance of the hearing. At the end of the defense presentation, the Defendant is given the last opportunity to speak to the Court before the Court decides. Not every defendant will choose to speak, but most lawyers usually encourage it because the Judge wants very much to hear from the Defendant. The type of speech to be made here is something that the defense lawyer will work closely with the Defendant in advance.

After the Defendant has made whatever speech he wants, the Judge then decides the sentence. Once the sentence is stated in court, it is written down in something called the Judgment & Sentence (or, as it is known, the "J&S"). This is the official document determining what the Court actually imposed, no matter how others interpret what the judge did. Always go to the J&S for the final word on what the sentence is.

In most cases that have been "plea bargained", both parties know what to expect at the sentencing and there are few surprises. Often, the recommendations made by both parties are agreed to by both parties, and neither party is able to veer from that agreement. In some cases, the prosecutor and defense simply agree that they will ask for whatever sentence they want and leave it to the judge to decide. But whatever the recommendations are from the lawyers, they are just that: recommendations. The Court is free to impose whatever sentence it wants, even up to the max, or nothing at all. In the vast majority of cases, the Courts follow the recommendations of the parties (because otherwise no one would ever agree to plea bargains if Judges were to break them regularly).

There are many other complications to sentencing, far too numerous to recount here. For this reason it's important that your lawyer be intimately familiar with the sentencing process in order to prepare you for what's ahead.