You be the Judge

Another installment where you get to decide the sentence of a person who committed a crime.

Ready for the facts?

Three 25 year old defendants get together and form a plan to make some money. They decide to break into stores after they are closed and steal cash and property. They wear hooded sweatshirts, masks, and gloves, then throw a brick through a window. Once the window is down, they pilfer the interior and steal everything that's not bolted down.

The devastation to these stores gets so bad that the police put a detail on this crew and they are finally stopped because they are caught in the act of a burglary. We can tie about twenty store burglaries to this crew, but we are not sure which of the group are responsible for most of them. They use different combinations of persons every time and with the masks, lack of prints, and lack of DNA it is hard to prove. We have solid video evidence of their faces at some of the locations, and have other videos of these gentlemen cashing in winning lottery tickets that they stole (no one ever said criminals were smart).

We know they did more, but feel confident we can prove three burglaries for each defendant. They plead guilty before indictment to two of the burglaries. So the sentence range for all three of them is anywhere from probation to 15 years in jail.

Here's the break down. Defendant 1 has a prior felony conviction for a burglary. Defendant 2 has a pending case for the same type of crime, but it is in a different county. Defendant 3 has no prior record.

What should happen to them? The same sentence? Different sentences? No one is hurt in any of these crimes, but the store owners' business is affected due to the damage and stolen property. Leave comments or send emails with your thoughts and I'll post what the judge does after all three men are sentenced.

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Fact Pattern 1

Result 

Fact Pattern 2

Result

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Affluenza - Saying the Same Thing a Different Way

Ethan Couch mowed down four people while driving a vehicle with a blood alcohol level of three times the legal limit. It is a terrible enough case before we add in the fact that he was only 16 years old at the time he killed the victims.

During the case proceedings, Couch's defense team called Psychologist G. Dick Miller. Dr. Miller provided his opinion that Couch suffered from affluenza, which is a lifestyle where wealth brings privilege without consequences for poor behavior. We called this type of person a spoiled brat growing up before naming every type of behavior became vogue.

The point at sentencing that Dr. Miller made was that Couch needed structure and guidance because he did not receive it at home and the only way to obtain this was through a rehabilitative sentence that avoided incarceration. The judge decided the appropriate punishment was probation for ten years, including a stint in a rehab facility where his parents would pay the $450,000 a year bill. He avoided any prison for the offense, but the court may revisit the issue if Couch violates probation.

Victims' families are crying out for justice. Dr. Miller took a term that means children of wealth tend to overspend, be irresponsible, and do not believe in consequences for their actions and stretched it to explain the need for rehabilitation, not punishment or deterrence.

I see this defense every day in the courtroom. Only, it is usually from an African-American male standing at the defense table with their assigned attorney. The defense attorney explains to the court that the defendant grew up with a drug-addicted mother and an imprisoned father, thereby left to the streets to teach him about life. The defendant is in need of structure, discipline, and should not be punished because he truly did not know any better. He argues that incarceration will only create another person dependent on social services for the rest of their life and asks for a sentence fashioned to help the defendant become a productive member of society. The story is so frequent that one has to wonder whether a judge becomes immune to it.

Couch's defense transformed a life of privilege, wealth, and parents into a disadvantage, creating the same circumstances as minority growing up without parents in the gang and drug-infested portions of an inner city.

There are only distinctions between Couch and the defendants just described without any differences. I wonder if Couch would have received the same sentence if the defense was forced to argue that he grew up without a father to instill obedience in him because his father was in prison and thus needed to learn consequences to his actions.

Would the judge have had the same sympathy if a public defender was making the argument? An inner city youth?

Where you fall on the appropriateness of the sentence probably depends on your view of crime. Should a person be punished for a crime and a message sent to deter future actors from doing the same thing? Or should a sentence be rehabilitative, with the goal of transforming the defendant into a productive member of society? This question has been argued for generations and will continue to be. (See a discussion of that here).

The sad truth is that four people are dead who were just at the side of the road trying to help a woman change a tire because of the intentional choices of a 16 year old kid that led to his recklessness. No matter your view on punishment, could you ever imagine watching the person responsible for four deaths, including your loved one, walk out the door into fresh air to catch a flight to Southern California to start rehab?

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Sentencing Answer Revealed

Today was the sentencing day. What's that? You don't remember what you were even waiting for? Here's the post to remind you of the case.

But a quick recap of the facts: 

The 16 year old male defendant was a member of a neighborhood gang and entered rival gang territory. He saw a 17 year old female who is associated with the rival gang. They argued and the defendant pulled out a fully loaded revolver while surrounded by seven of his friends. He pointed the gun at the victim's head from three feet away and pulled the trigger. The gun did not go off, which caused the defendant to look at the gun and point it at her head again, pulling the trigger twice more with the same result. The defendant ran away and so did the victim who was unharmed.

The police watched the surveillance video depicting the above events and arrested the defendant 20 minutes later, still in possession of the revolver. The revolver is tested and determined that it works, but the ammo in the gun was not the correct ammo. The gun will fire with that ammo, but not every time the trigger is pulled. It all depended whether the ammo lined up properly in the cylinder when the defendant tried to fire it.

The defendant confessed to the crime, but said he blacked out when he pulled the gun out.

The defendant pleaded guilty to a class B felony and a class C felony, the highest charges he was charged with. The defendant has no prior record and a very involved family.

Possible Sentence:

The defendant is eligible for Youthful Offender adjudication (due to his age), which means the judge can seal his conviction and sentence him to as low as probation and as high as 4 years in jail if given this. The judge can also sentence him without Youthful Offender status and sentence him as an adult, without sealing the case, to anywhere between 5 and 25 years in jail.

Many of you sent your thoughts to me and they ranged from sympathy for the accused and hoping he would get the help he needs to turn his life around to 25 years (the maximum). Some emails provided thoughtful analysis that balanced the need for punishment with the need for rehabilitation, knocking time off for good behavior. Most chose the middle of the road, in the 10 to 15 year range.

In our case, both the prosecution and defense submitted pre-sentencing memos regarding their thoughts on youthful offender adjudication and today the judge ruled. This case was one of the most contested sentencing arguments I have been a part of.

The judge denied youthful offender treatment, but gave the defendant the minimum sentence as an adult of 5 years in jail. Both sides walked away unhappy, which probably means it was the correct sentence.

Thoughts?

More like this:

You Get to be the Judge

The Sentencing Answer

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You Be the Judge

It's another installment of the popular series on this blog. Below will list the publicly known facts of a particular case and available sentencing options for the judge. Give us your opinion on what the sentence should be and even better, why.

Facts:

The 16 year old male defendant was a member of a neighborhood gang and entered rival gang territory. He saw a 17 year old female who is associated with the rival gang. They argued and the defendant pulled out a fully loaded revolver while surrounded by seven of his friends. He pointed the gun at the victim's head from three feet away and pulled the trigger. The gun did not go off, which caused the defendant to look at the gun and point it at her head again, pulling the trigger twice more with the same result. The defendant ran away and so did the victim who was unharmed.

The police watched the surveillance video depicting the above events and arrested the defendant 20 minutes later, still in possession of the revolver. The revolver is tested and determined that it works, but the ammo in the gun is not the correct ammo. The gun will fire with that ammo, but not every time the trigger is pulled. It all depended whether the ammo lined up properly in the cylinder when the defendant tried to fire it.

The defendant confessed to the crime, but said he blacked out when he pulled the gun out.

The defendant pleaded guilty to a class B felony and a class C felony, the highest charges he was charged with. The defendant has no prior record and a very involved family.

Possible Sentence:

The defendant is eligible for Youthful Offender adjudication (due to his age), which means the judge can seal his conviction and sentence him to as low as probation and as high as 4 years in jail if given this. The judge can also sentence him without Youthful Offender status and sentence him as an adult, without sealing the case, to anywhere between 5 and 25 years in jail.

Please comment, email, or tweet @prosdiscretion your opinion on the sentence and reason. But don't expect an answer until the sentencing date next month.

More like this:

You Get to be the Judge
The Sentencing Answer

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The Sentencing Answer

Last week I laid out a factual scenario here, asking for your comments and emails about what sentence the defendant should receive.

Most of your replies tended on the high end of the range, around 14 years. After all, many of you argued, she already received the benefit of a reduced plea bargaining bringing her max sentence down from 50 years to 14 years.

And the judge sentenced the defendant to . . . . 2 years of local time and no parole.

Thoughts?

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You Get to Be the Judge

What would you do?

I am heading down to sentencing this morning for a defendant who committed a robbery and a separate home invasion. We have wrestled with what an appropriate sentence should be for months as the case dragged on. This is a summary of the facts and I thought it would be a good exercise to see the real decisions prosecutors must make on a daily basis.

On day 1, the female defendant (call her Sara) and her boyfriend (call him Sam) went to an antique store, where Sam robbed a man at gunpoint and pistol whipped him, while Sara orchestrated the getaway.

On day 2, Sara went to her 81 year old aunt's house, saying she wanted to help with her errands. While Sara and her aunt were out, Sara called Sam and told him to steal things while they were out. Sam couldn't get in and waited for aunt and Sara to get home. Sara left the door unlocked when she went in with the aunt and Sam burst in at gunpoint. Sam and Sara duct taped the aunt, and Sam beat her with the gun, choked her, and stomped her into unconsciousness, leaving her for dead. Sam and Sara stole everything valuable from aunt's home and then stole her car.

The aunt survived and identified Sara, but could not identify Sam. Sara confesses and agrees to cooperate against Sam. She leads us to evidence of the crimes to tie Sam to them and testifies against him at trial. Sara has Sam's baby while the case proceeds and actually marries Sam while he is in jail awaiting his trial.

Sam is convicted of robbery and burglary and is setenced as a persistnet violent offender (3 violent felonies in 10 years) to 25 to life in jail.

The aunt wants Sara to have a similar sentence, but the plea deal only allows the judge to sentence Sara anywhere from probation up to 14 years in state prison.

Be the judge and leave a comment or send me an email. What should Sara's sentence be taking into account the horrible crimes, but also that we could not have convicted her boyfriend/husband without her?

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Cruel and Unusual Punishment?

It depends on your views.  With immigration and the health care law, what the Supreme Court did this week in the land of juvenile justice is getting overlooked. 

In Miller v. Alabama, the Supreme Court ruled that a sentence of life imprisonment without the possibility of parole for persons under eighteen violates the Eighth Amendment's prohibition on cruel and unusual punishment.  The Court ruled that mandatory life sentences for two fourteen year olds convicted of murder should not stand. 

It is a ban on states that have mandatory life without parole sentences, not on discretionary life without parole sentences where the court or jury considers the background of the juvenile and all other circumsances.

The Court divided 5 to 4 on this issue in deciding two cases similtaneously.  Evan Miller, the defendant, was fourteen when he and another boy beat and robbed a neighbor with a baseball bat and then burned the trailor to the ground with the victim inside.  In the second case, Arkansas native Kuntrell Jackson, fourteen, was convicted of murder when a store clerk was shot and killed during a robbery by one of his accomplices.

The Supreme Court took issue with legislatures mandating life without parole sentences in these cases.

This is an extension of the Court's decision in Graham v. Florida, in 2010.  In that case, a sixteen year old was sentenced to life without the possibiltiy of parole for an armed robbery.  The Court held unequivocally, that life without parole sentences are never valid for juveniles in non-homicde cases.   

The Supreme Court has taken a chunk out of juvenile sentencing in the last few years.  In Roper v. Simmons, in 2005, the Supreme Court ruled that the death penalty is no longer available for juveniles convicted of murder.  It again ruled that this is a violation of the Eighth Amendment.  The Court stated that their opinions can reflect the standards of an evolving society on the issue of sentencing. 

The Supreme Court had taken up the juvenile death penalty previously.  In 1989, in Stanford v. Kentucky, the Supreme Court upheld the death penalty for juvniles convicted of murder.  In those cases, the defendants were sixteen and seventeen. 

The Supreme Court admittedly analyzes sentencing based on the standards and decency of an evolving society.  None of these decisions will affect juvenile sentencing in New York State.  New York State does not have a death penalty anymore and juvenile offenders, even those convicted of murder, have a maximum sentence of fifteen years to life. 

Juvenile justice is a lightning rod issue.  Some of the juvenile crimes are the most heinous and violent.  We walk a fine line between an appropriate sentence and rehabilitation.  A bill is winding its way through the New York legislature right now that will overhaul the entire juvenile offender system. 

For better or worse is yet to be seen.  The other question is, why is eighteen the cut-off?  Or sixteen?  Or whereever someone will draw a line.  Some studies say the brain is still devloping through a person's twenty-fifth birthday.  Picking an arbitrary date leaves a lot of room for future debate. 

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