plea and sentencing paper writing sample

EXAM # 8830PLEA AND SENTENCING: TAKE-HOME FINAL EXAM

TO: Governor of the State of Jefferson

FR: General Counsel, State of Jefferson

RE: Recommended Sentencing Reform Plan

“Clearly excessive.” These were the words uttered by an Arizona Superior Court Judge as

he handed down a sentence mandated by law. His own training and experience were constrained by

statute, he voiced a concern over one case that others are beginning to ask about in states across the

country about mandatory sentencing regimes. Across the country the vast majority of people

recognize that the current systems in place are not getting the job done. This is nowhere less clear

than in the State of Jefferson.

The sentencing reform solution that is proposed below is predicated on a 3-3-3 approach.

The first “3” is in regards to the three main actors that are going to have to work together for this

new system to be successful: Prosecutors, public defenders and judges. The second “3” is in

regards to the three main goals that this new system is designed to achieve. The first goal is that the

sentencing system be implemented in an honest way; that is, when a court enters a sentence of

imprisonment, there should be a reliable expectation that the offender will serve a substantial

majority of that term of imprisonment. The second goal is that the sentencing system should be

fair; that is, there should not be wide disparities in sentencing based on irrelevant factors, such as

judicial assignment, jurisdiction, wealth, or race. Similar offenders should receive similar

punishments based on the severity of their criminal behavior. The third and final goal is rational

sentencing. Jefferson needs a system that wisely uses our scarce prison resources to ensure that the

most dangerous offenders are incarcerated while lower risk offenders are punished through more

effective intermediate punishments, such as the community corrections and drug courts programs.

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The current system in Jefferson is in need of a massive overhaul and fundamental

restructuring. Law enforcement officers throughout the State of Jefferson complain that the

sentencing and parole system is dishonest and arbitrary. Victim rights advocates also voice similar

concerns, in addition to complaints that victim restitution is a low priority. Judges and prosecutors

complain that their work seems to have little effect on ultimate punishments because of later

decisions of the Board of Pardons and Paroles and the administration of early release by the

Department of Corrections. The officials of those institutions in turn complain that their funding

and staffing are grossly inadequate. It is widely known that determinate and indeterminate

sentencing scheme extremes have many problems. The draconian solutions that often flow from

determinate sentencing can freeze out of the justice system a lot of hope of discerning between

individuals convicted of the same or similar crime.1 On the other hand, too much of a reliance on

indeterminate sentencing can lead to personal biases of judges creeping in and resulting in widely

differing sentences for similarly situated defendants.

Determinate sentencing’s principal goal has been the elimination of unwarranted disparity,

with legislatures seeking proportional punishment for different offenses and consistent punishment

for similar crimes.2 Current sentencing policy instead reflects a preference for retributive justice,

with punishment commensurate with the seriousness of each type of offense. While determinate

sentencing statutes seek proportionality by balancing multiple factors, mandatory sentencing

statutes generally provide that when a specified circumstance exists in connection with the

commission of a crime (1) the court must sentence the defendant to prison and (2) the duration of

the defendant’s incarceration will be substantially longer than it would have been in the absence of

the circumstance.3

1 Wallace M. Rudolph, Punishment or Cure: the Function of Criminal Law, 48 Tenn. 535 (1981).2 Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Cal. L. Rev. 1 (1993).3 Id.

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A jurisdiction’s choice between charged-based and conduct-based sentencing in criminal

prosecutions influence the interaction between mandatory sentencing provisions and the criminal

process. In charge-based sentencing, the formal charges the state brings against the defendant must

contain the factual allegations that trigger the mandatory minimum sentence. In conduct-based

sentencing, the court imposes the enhancement sentence based on the defendant’s actual conduct

and criminal history, regardless of the charges for which she is convicted.4 The two approaches

differ in the extent to which prosecutorial plea bargaining practices influence judicial sentencing

discretion.

The current system in Jefferson is a strict and rigid determinative sentencing scheme. The

most problematic thing about this, from a purely theoretical perspective, is that the determinate

sentencing regime is an aberration of deterrence. At its most simplistic level, criminal punishment

is above all a method of deterrence. Determinate sentencing morphs the criminal justice system

into one focused solely on punishment, and this fails to take into account that not every criminal is

the same person. What may deter on individual from committing a crime again may be vastly

different from what deters the next individual. While a swing toward a more indeterminate

sentencing system may return common sense to criminal justice, by taking into account the fact that

just because two individuals were prosecuted under the same statute does not mean that they must

serve the exact same sentence, too much of a swing and the same problems of biases and

inconsistent results.

Instead of a focus on one or the other a balance can be obtained in each case: the amount of

retribution through imprisonment or parole that the state requires, and the amount of punishment

necessary to deter the criminal in the future. The focus on determinative sentencing has removed

from the criminal justice system in Jefferson, something that has been gravely missing: variables.

4 Id at 743


The first variable is always the initial sentence, and the second the discretion of judges, parole

officers, and other penal authorities to vary how that sentence is served. Within these two variables,

however, Wallace Rudolph5 writes that a multitude of stop-gaps and releases could achieve a more

just legal system.

Without strict determinate sentencing, plea bargains can once again become more creative.

With increased awareness of the need for emotional or mental rehabilitation, innovative solutions

involving drug treatment or faith-based rehabilitation are back on the table. One of the little known

dangers is that often three-strike enhancements are not charged, but rather used as a bargaining chip

in plea negotiations. Ironically, despite the fact that Jefferson’s prison is spiraling out of control, it

could become astronomically worse if prosecutors found their hands more tied in the future with

increased pressure to use mandatory or automatic enhancements. In a system with less determined

sentences, the Judge will regain authority to take a more individualized approach to sentencing, thus

offering unique solutions for those who might need it. A less determinate sentencing system would

allow prisoners to once again “earn” their release. A more discretionary parole board will be able to

reward those prisoners and individuals whom actually make the effort to rehabilitate.

Criminal filings have clearly exploded in Jefferson. If Jefferson is similar to most other

states, this likely began with the marijuana prosecutions in the late sixties and early seventies, and

continuing with the crack & cocaine prosecutions of the 80s and even today. Jefferson is likely

seeing nearly exponential increases in its criminal prosecutions for drug related activities. The

numbers are staggering in California. The superior courts there which deal with felony

prosecutions, saw a 394% rise in their criminal cases. When the Determinate Sentencing Act was

passed, it decimated any hope drug offenders may have had for rehabilitation instead of

incarceration. The only power left was no longer in the judge’s hands, but the prosecutor, who had

5 Rudolph at 540-543.4


charging discretion. A movement back towards less determinate sentencing may finally allow drug

prosecutions to guarantee that we are not blindly punishing the convicted, but getting the convicted

addicts the help they need.6

Determinate sentencing does not work. There is little to no research supporting the idea that

mandatory minimums, predetermined sentencing, or three strike laws reduce the crime rate at all.7

The threat of punishment has little impact on criminal behavior because most of the criminals

believe they will not be caught, they have little knowledge of what sentencing laws would apply to

them, or they commit crimes while intoxicated, angry, or high and thus are not rationally analyzing

the consequences of their behavior.8 An AP wire story out of Los Angles had the headline “Judges

Uphold 3-Strikes Term In Food Burglary”9 citing the case of Gregory Taylor, who tried to pry open

a church kitchen door, as a third-strike felon. In a story straight out of ‘Les Miserables’, Mr. Taylor

found himself with 2 robbery convictions from the 1980’s and an 1899 parole violation. His

sentence: 25 years to life. This is just one example of the rampant problems that are facing states

across this country because of their determinant sentencing systems. The sad fact is that there are

probably similar stories that are being written about defendants in our state even today. Such a fact

ought to shock the conscience. It is clear that some solutions are sorely needed.

SHORT-TERM SOLUTION (Implement 3-6 months)

There are some short-term solutions that can take immediate effect and are particularly

tailored to addressing the growing prison population. The first step involves modifying Jefferson’s

Penal Code to allow inmates to earn supplemental sentence reduction credits after they complete

6 Harry N. Scheiber, Innovation, Resistance, and Change: A History of Judicial Reform and the California Courts, 1960-1990. 66. S. Cal. L. Rev. 2049, 2065 (1993).7 Michael Vitiello and Clark Kelso, A Proposal for a Wholesale Reform of California’s Sentencing Practice and Policy, 38 Loy. L.A. L. Rev. 903, 926 (2004).8 Peter W. Greenwood, et al., Three Strikes and You’re Out: Estimated Benefits of California’s New Mandatory-Sentencing Law, RAND, summary at xi, (1994).9 See http://www.desertnews.com/article/693878/Judges-uphold-3-strikes-term-in-food-burglary.html

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specified education, vocational, or drug-treatment goals. Additionally, establish a program to

identify older inmates who could be safely released early from prison. The “quick-fixes” do not

propose radical changes to the determinative sentencing regime, but they can start the prison system

on a path where the rigid requirements of determinate sentencing no longer bind the state’s hands.

An “age-release” program is aimed at one goal: reducing the prison population. An at-capacity

prison has less space for rehabilitation programs and puts a straightjacket on management

flexibility. Another possible solution to free up more prison space would be an early non-violent

release program.10

Another short-term fix would involve a three step process of 1) to amend the laws of

property crimes to raise the felony thresholds and change the property values on which those laws

are based to reflect increases in inflation since the laws were last codified. 2) The second short-

term fix step would be to increase funding for probation and parole officers. 3) A third and final

short-term fix step would be to fund an intensive inpatient substance abuse treatment program for

offenders. These recommendations are driven by data that drug and property offenders are

overwhelming the sentencing system. The current system of locking away all drug offenders is not

effective, as these same drug offenders will eventually be released to the streets, and the cycle

continues.

Rehabilitation for reduced sentencing is typically the reform met with the most opposition.

The most obvious critique is that allowing for reduced sentences after completion of certain

programs runs the very real risk of releasing dangerous offenders back into the population.11 Yet,

this ignores a shocking statistic. Amongst the current prison population, 90% will eventually be

released on parole. Of that huge group, nearly 50% will find themselves back in prison. So, for

10 See Excerpts from Reports on Corrections Reform Recommendations on: Parole, Sentence credits, Rehabilitation and Community Supervision, CDCR.ca.gov11 Michael Vitiello, Reforming Three Strikes’ Excesses, 82 Wash. U. L. Q. 1, 4 (2004)

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those worried about releasing individuals back on the streets who will commit crimes again it must

be said: we are already doing it. Drug treatment, education, real reform; these are the only tools the

state has at its disposal to actually rehabilitate prisoners, and hopefully end their felonious

lifestyles.12 Above all, however, with determinate sentencing there is no reason to reform; prisoners

will be released on the same day regardless of whether or not they attempt to reform. Since other

authors will address rehabilitation more in-depth, it is appropriate to leave rehabilitation at this and

move on to actual sentencing reform.

MEDIUM-TERM SOLUTIONS: (Implement 1-5 Years)

The growing recognition of the need for major changes has led to some surprising

collaborations. This is clearly evident in the growing Right on Crime movement. An initiative of

the Texas Public Policy Foundation (TPPF)13, it identifies itself as “the conservative case for

reform: fighting crime, prioritizing victims and protecting taxpayers.” Right on Crime arose from

its analysis of a failed reliance on a swinging pendulum that sought to address criminal activity:

emphasis on rehabilitation and social service programs versus high incarceration rates and prison-

building. According to their organizers, neither approach, alone, has been able to achieve success.

In the same vein, neither rigidly strict determinant sentencing schemes nor loose laissez-faire

indeterminate sentencing schemes have achieved success.

One way to begin is with the idea of “justice reinvestment”.14 A new framework is a phrase

that many policymakers across the country use as they seek a collaborative way forward. One of

the biggest names in sentencing and other criminal justice issues is law professor, Doug Berman.15

In Berman’s16 estimation, national trends on the topic are not about spending less on public safety 12 Id.13 See http://www.rightoncrime.com14 See http://www.csgjusticecenter.org/jr15 Doug Berman. (He is a law professor at The Ohio State University Moritz College of Law as well as the creator/author of “Sentencing Law and Policy”, a legal blog)16 Douglas A. Berman, Sentencing Law and Policy, (http://www.sentencing.typepad.com

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but about wiser spending. He says, “Incarceration is a very expensive way to keep the public

safe.”17 Our own state of Jefferson is facing this very problem. As a result of the current rigid

determinative sentencing scheme, Jefferson’s prisons are overpopulated and overreaching into

Jefferson’s budget. While there may be a general consensus for that statement, like most problems

the hard part is in agreeing to a solution. As Berman asks, “How do we move off the inertia and the

status quo realities?”18 The fact remains that such inertia is reinforced because politicians rarely get

in trouble with the public for spending on public safety issues.

If reform success stories are available, but state adoption of these new strategies is low, who

is to blame? Part of the problem lies at the feet of those involved deeply in the creation of policy.

According to Berman, “The DNA of criminal justice reform is inhabited by horrific stories. It is

dangerously easy for the average politician to leverage the fear of the average voter that they will be

a crime victim.”19 There is much less of an emphasis on an understanding of how that same person

can be caught up in an overreaching and dysfunctional system. The power and the salience of the

criminal anecdote and the fear that creates cannot be understated.20 It is clear that prosecutors

continue to be an important key to determining whether and how reform occurs. This is due to the

nature of the job of a prosecutor. Prosecutors are deeply involved with the system in a case-by-case

role and are ingrained with the belief that they can always mitigate or temper with mercy any part of

the system that they think has gone too far. In addition, ceding discretion and decision-making to

other stakeholders may be asking too much, and prosecutors fear it would have a snowball effect as

well as limit their control over ensuring justice.21 However, altering sentence lengths may not be

the area where Jefferson will see the most progress.

17 Id.18 Id.19 Id.20 Marc L. Miller, A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency, and the Next Generation of Reform, 105 Colum. L. Rev. 1351 (2005).21 Id.

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In terms of probation reform, the initial sentence is important. However, too much

of a focus on sentencing length skews the larger discussion. Criminal cases have many nuances,

and a discussion of prison reform should not begin at the end of the process that sets the inmate on

his ultimate path. Instead, criminal justice’s goals may be served in many ways beyond a focus on

the length of sentences. Furthermore, public safety and prison budgets are two entirely separate

concerns. If prison savings is put into the mix, that is an almost surefire way to guarantee a

decrease in public safety. Jefferson can be more creative in parole, probation and reentry initiatives.

Additionally, “techno-correction)—GPS tracking—efforts will allow the convicted to serve out

their terms in a limited area of their community.22 North Carolina may offer the most unique

solutions to Jefferson’s sentencing problems. The state currently offers “Deferred Prosecution” as a

way to combat prison overcrowding without increasing expenses. Deferred prosecution is a district

attorney’s decision to withhold prosecution in order for the offender to make amends. These

conditions often include restitution or community service. North Carolina limits this option, which

is strictly supervised and requires court approval, to first time non-violent offenders. Despite the use

of this program for a few years now, North Carolina does not provide the total number of

defendants afforded this opportunity because “of the status of current records.”23

North Carolina also offers Drug Education Schools (DES)24 for misdemeanor drug

offenders. On average, this program reaches 25 year old first time offenders who are able to avoid a

prison sentence. DES is a community punishment program which is essentially a “scared-straight”

drug treatment course in which the very real dangers of drug use are explained in detail. Students of

DES must participate and attend the session, and will not be cleared until they identify a personal

plan reflective of informed self-assessment that will focus on preventing recidivism. One of the

22 U.S. Department of Justice – Office of Justice Programs, Sentencing & Corrections Issues for the 21st Century (No. 5 May 200023 North Carolina Sentencing and Policy Advisory Commission, Compendium of Community Corrections Programs.24 Id.

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more unique opportunities North Carolina offers is the Residential Center. This highly restrictive

probationary tactic allows offenders to live in a structured setting with privileges to leave for work

or activities such as drug treatment of community service. The North Carolina Department of

Correction operates several of these, but they all adopt the same basic structure: orientation,

treatment, reentry preparation, and aftercare release. It is this basic reentry preparation and post-

release supervision that is most lacking in today’s Jefferson’s Penal system. Another tactic that can

be used to make Jefferson’s drug policies more sensible and effective is regarding drug trace cases.

These cases should be treated as misdemeanors as such cases achieve nothing more than

overloading the dockets and wasting court time and money.

In Texas, the conservative Texas Public Policy Foundation – an Austin-based think tank –

has been a leading advocate for ending “the tough on crime” mentality led to prison terms for

people whose primary problem is addiction.25 Rightly so, Texas looked upon this problem as both a

fiscal and a moral problem. In 2007, the legislature responded with funding for alternative

programs designed to minimize the number of drug cases moving into the prison system. This

made it unnecessary to build more prisons, existing ones were closed, and the $200 million that was

authorized that year for diversion and new facilities was estimate to save 10 times that much in

construction costs alone. The prisons that were closed added even more savings.26

LONG-TERM SOLUTION: (Implement 5-10 years)

The new system would also need to be efficient and to that end, the development of a

Sentencing Information System (SIS) is recommended. The idea of a SIS is simple: Judges are

provided sufficient information to determine how other offenders like the offender in front of the

judge have been sentenced before. Judges are able to ask a series of “what if” questions by varying

25 Mike Tolson. Texas’ drug-sentencing reform could be model for U.S. Houston Chronicle. Local Section (2013).26 Id.

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each of the relevant factors to see how each variation changes the sentences others have imposed.

An even more complex SIS would allow these “what ifs” to vary over specified time periods (or to

show trends) and over different political units or groups, such as sentences by the same judge, by

other judges in the same courthouse, or by other judges in the same state. Unlike rigid sentencing

guidelines, an SIS does not tell judges what they must do or should do; it tells judges what others

have done, thus allowing a better-informed judgment in each case. An SIS allows for the

development and expression of social norms in ways akin to traditional common law reasoning by

analogy.27 An SIS would allow judges to answer the most basic question about sentencing in each

case. It would also have many other virtues. It would let judges know the distribution of actual

sentences in similar cases, including the distribution of sentences at high or low ends of available

ranges and the use of available non-prison sanctions. An SIS would both illuminate and act as a

counterpoint to the rules themselves, suggesting the extent to which they are being followed and

how they are being applied.28 To the extent that state systems allow for judicial discretion—in fact-

finding within guideline ranges, or for departures—it could help to illuminate that exercise of

discretion. It should also help litigants shape sentencing arguments in each case.

Judges could look at sentences in similar cases that they had decided, that judges in the same

courthouse or district had decided, and that judges from the entire jurisdiction had decided.

Equipped with SIS information, judges could work more effectively with sentencing commissions

and legislatures to improve sentencing guidelines. From a reformer or scholar’s perspective, the

information revealed by an SIS could become a powerful basis for arguments for further reforms,

including development of sentencing rules and sentencing ranges. Unlike the rules of a structured

sentencing system, an SIS can provide information beyond that which is legally relevant to

27 Marc L. Miller, Sentencing Reform “Reform” Through Sentencing Information Systems, in the Future of Imprisonment 121, 129-35 (2004).28 David Tait, Judges and Jukeboxes: Sentencing Information Systems in the Court room, 6 Int’l J.L. & Info. Tech. 167, 186-87 (1998).

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individual sentences. The legally irrelevant information, such as sentences imposed in similar cases

in other jurisdictions or changes in the distribution of sanctions over time, can be highly relevant to

policymaking.29 Systems could allow factors and distinctions that should not have any binding

weight but which might nonetheless inform judges, reformers or scholars. An SIS that created some

procedures and presumptions about how the information should be used could more easily

distinguish between controlling, informing, and irrelevant information.

For example, Pennsylvania has implemented Sentencing Guideline Software (SGS) for use

by judges.30 The primary purposes of the SGS system are to help judges calculate prior record, to

assist in guideline calculations, and to dramatically increase the speed and lower the error rate for

entering information about each sentence.31 The SGS system also provides judges with information

about “conformity,” telling them whether--based on offender facts, prior record, offense facts, and

other information--the proposed sentence is in the standard range or in mitigated or aggravated

ranges.32 For some sentences significantly above or below the standard range (“Outside Below” or

“Outside Above”) the judge must provide reasons; for sentences that are considered “Aggravated”

or “Mitigated” the system requests (but does not require) such reasons.33

One substantial challenge faced by modern commission and guideline sentencing reform

efforts is the task of determining the proper role for the sentencing judge. Most guidelines systems

include statements retaining a central role for the sentencing judge, and most legislatures and

commissions have asserted that the opinions and suggestions of judges (both formal and informal)

29 Marc Miller, Sentencing Reform: Reform Through Sentencing Information Systems in the Future of Imprisonment, University of Arizona – James E. Rogers College of Law (2005).30 See Pa. Comm'n on Sentencing, Sentencing Guideline Software Web Version Users' Guide, Revision 2.2 (on file with the Columbia Law Review).31 See Pa. Comm'n on Sentencing, Web-Based Sentencing Guidelines Software, at http://pcs.la.psu.edu/SGS%20Web%CCC20Report%CCC20for%CCC20PCS%CCC20Web%% 20Page.htm (last updated Mar. 8, 2002) (on file with the Columbia Law Review) (“Users can calculate prior record and retrieve guideline recommendations, review conformity and total sentence imposed, and submit all information electronically to the Commission.”).32 SGS Guide, supra note 96, at 72.33 Id.

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will be used as feedback to improve the system. An SIS offers a dramatically different way of

depicting the sentencing judge’s role and perhaps could help to achieve the promise of more

principled sentencing while maintain a central role for sentencing judges. An SIS also responds to

the actual decisions of judges. Judges would play a stronger individual and collective role in such

systems than they do now in commission and guidelines systems that do not incorporate SISs.

ADDRESSING POTENTIAL CRITIQUES OF THE NEW SYSTEM

As mentioned earlier, the easiest part is agreeing that there is a problem, but the hard part is

getting a consensus as to the solution. Legislatures can deal with the rigidity issue even without

addressing the severity issue by providing that the sentences prescribed by such laws are

presumptive in nature, rather than required. This would permit a trial court to depart from an

unfairly severe sentence requirement in appropriate cases and instead choose a penalty from the

applicable sentencing range for the defendant’s offense without the enhancement factors. To

prevent unwarranted use of this authority, Jefferson’s legislature should follow the lead of several

states by authorizing downward sentence departures only when a court finds “substantial and

compelling” mitigating circumstances and states its findings on the record, with a prosecutorial

right to appeal. This could lead to the development of a common law of sentencing, informing trial

courts when departures from presumptive sentence enhancements are appropriate.

This reform will only be effective if a partnership between prosecutors, public defenders and

judges are created, fostered, and maintained. These are the big three (of the 3-3-3 proposal) with

the most influence as well as the most benefit to gain from meaningful sentencing reform.

Prosecutors will no longer feel constrained to using the mandatory sentences in an unfair way at the

plea bargaining stage, because there is more freedom and less restrictions allowing them to work

with the defense. Judges will have greater control over sentencing, while still having appellate and

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legislative oversight, which will allow them to punish the perpetrator of the crime while tailoring

the punishment to the specific individual. Finally, the public defense attorneys will have a better

bargaining position at plea bargaining and will be able to make better informed decisions with their

clients. The only way for any reform to be successful is for all parties involved to work together. It

is not going to be easy, but we will do what Jeffersonians have always done: Survive, Adapt, and

Overcome.

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