A sentencing is the hearing at or near the end of the criminal case, where a judge hands down the punishment for being convicted of a crime. We do everything we can to avoid these hearings, but sometimes they are necessary. They are also extremely important moments for a client.
“How much jail time am I facing for this?”
Over the years, many clients have sat down at our office and asked us this exact question. Of course it’s natural when accused of a crime to want to know the consequences of conviction, innocent or not. A person cannot make an informed decision without all the facts of his or her situation.
And yet, the answer to this question is often, “it depends.” What does it depend on? There are four critical components we’ll touch on here, although there are others as well.
1. It depends on the prosecutor.
Prosecutors have a great deal of discretion in not only determining whether a chargeable crime occurred, but also to decide what crime or crimes ought to be charged. Different jurisdictions do it differently – some prosecutors formally charge (or accuse) a criminal defendant with every crime they think they can prove. Other prosecutors charge only the bare minimum, and then add additional charges later if a plea deal is turned down. How much punishment a client faces turns on what exactly the government has charged him with.
2. It depends on the client.
What a client decides to do will often control the answer to the question of “how much jail time am I facing?” Is the client risk-averse or not?
If you walk into my office with a charge of burglary 2nd degree, for example, and you’ve never been convicted of a felony before, I can easily tell you that you are facing between 1-3 months in jail if convicted. But that simple answer may not be the end of the story. Because if the prosecutor also decides to charge you with the burglary AND fleeing the police AND identity theft AND trying to sell the stolen property that came from the house, that can result in additional charges, which affects how much time in jail or prison you’d be facing. If the case is domestic violence related, that can affect the amount of jail time. If you were on probation, that can affect the amount of time. If there are multiple victims, that can affect the amount of time. And so on, you get the idea.
Then there’s things about the cases themselves that can add extra punishment, called enhancements. If, using the burglary example above, the crime was committed while armed with a gun or a knife, that can add a weapon enhancement on top of the sentence. For serious crimes, this can result in years of extra punishment. This is true even if the client himself never touched a weapon, but committed the crime with the help of another person who did have a weapon, otherwise known as an accomplice.
3. It depends on the defense lawyer.
If you’re charged with a crime, you need a lawyer who is familiar not just with the basic law and rules, but all the exceptions to these rules that we’re talking about above. It’s also wise to retain a lawyer who has working relationships with the prosecutors and judges who will be involved in deciding a client’s fate.
The good news is that with the right lawyer, there’s hope for a successful outcome to a case even if the client takes a plea deal or is convicted at trial.
We recently tried a case to a jury where the client was acquitted of the most serious charge, but was convicted of some lesser offenses. At sentencing, the prosecutor tried to throw the book at him, but we were able to convince the judge to impose a sentence less than a third of the amount sought by the government.
How did we do this? Well, in the example we’re using, our strategy was to hire a psychologist to supply a thorough neurological evaluation to the judge. We were able to show that our client had mental health issues that, while not enough to form a legal defense to the charges, were documented to such a degree that the client wasn’t fully in control of his own behavior at the time of the crime. These reports allowed the judge to determine that treatment, rather than prison, was a more optimal outcome for the case.
4. It depends on the judge.
We have convinced judges to reduce or eliminate jail or prison time completely in many cases. There are some lessor known strategies in the law to allow a person to go on probation, house arrest, drug or alcohol treatment, or the like, rather than prison. We’ve used the law to convince a judge to give our client, a young mother, probation rather than prison for her crimes, so that her family could remain together and she could pay restitution to the victim.
There’s a lot of creativity that goes into an effective sentencing presentation. It’s one of the few times that you can really do good work for a client, and you can literally save them years of their lives.
Another case we had involved a client who had been in trouble on out of state cases years before the current conviction. If a judge added up all of his history from across the country, he would have faced an extremely high sentence. We forced the government to “prove” that his out of state convictions were valid (they couldn’t do it, so those out of state cases didn’t count against our client). Then we demonstrated that some of his convictions weren’t equivalent to felonies from this state (which the law requires), so they too couldn’t be counted against him. The result was what looked like a potential decades long sentence translated to a much more manageable one.
So all hope is never lost. Even if your case looks “hopeless” on the outside, much of the time there are effective tactics we can employ to help save your life. You only need to reach out to an experienced lawyer to help.
-Derek