How Do Judges Sentence In A Criminal Case?

Last night, I was out in a rural town court for the sentencing of one of my favorite clients. This guy is really incredible: He has been convicted of 31 crimes, but nothing violent. You probably think “career criminal,” but to me he is an expert in the New York legal system and is about as interesting to spend time with as anyone I know.

My guy was arrested about six months ago for Grand Larceny in the Fourth Degree for taking some rusty wheels from the side of a barn. He scrapped them for about $200. The owner of the farm happened to be a police officer, and he said they were worth $1,700. He also happened to have about 20 security cameras recording the joint. Best-case scenario was a conviction for a misdemeanor instead of a felony at trial. The DA offered a plea to the misdemeanor, with sentencing left up to the judge, which we accepted.

So, what should he get? The judge read the pre-sentence investigation, which said jail was the only option and a lot of it, because this guy never learns. He actually sentenced him to the maximum, before I could get much out of my mouth. There were also other factors to consider:

  • Since going into custody my guy missed the birth of his son and his daughter’s first day of school
  • His co-defendant was released a month ago a placed on probation
  • His mother in law is dying of cancer and his wife is her primary care giver
  • The property owner had changed their tune after originally valuing the property at $1700; now they say $450 (sounds like a cop who knows the system forcing a plea)

So, after the guy is sentenced to the maximum on a misdemeanor ‑ one year ‑ I launch into my defense attorney mode, Britney Spears song-and-dance style. Next thing you know, the judge changes his sentence to a conditional discharge, saving my guy months in jail. Obviously I was ecstatic. I thought it was the right thing in this case, and we had changed the mind of a small-town judge. But it got me thinking about how these judges actually decide.

Criminal defense attorneys see it every day: So much of the outcome depends on the judge. Some sentence based on record, others on the event itself. Some sentence for the hope to reform, others to hold them out of society for as long as possible. The outcomes got so skewed in federal court that a kilogram of cocaine in New York City would get you probation, but a life sentence in Montana. So Federal Guidelines were created for federal court. Next thing you know, everyone is complaining that the judges have no discretion to consider the facts of a case. The Supreme Court even agreed, and determined that sentencing guidelines were unconstitutional.

There is no punch-line or clever ending to this story. Most players in the criminal justice world accept that what judge you get plays a huge role in potential outcomes. I accepted that long ago. I guess it just really struck me last night how quickly a guy’s life is changed by a few fleeting thoughts in a judge’s head ‑ so I wrote about it. If you have a question about your judge, contact us to discuss your case.


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