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A major shift is under way in sentencing practices in the D.C. local courts. Beginning sometime in May or June, the D.C. Superior Court is expected to implement a pilot program of voluntary sentencing guidelines for felonies. The guidelines are based on a recommendation from the D.C. Advisory Commission on Sentencing submitted to the D.C. Council last November as part of the commission’s 2003 annual report. After surveying all 50 states and analyzing extensive data on sentencing practices in D.C. Superior Court, the commission decided on a system of voluntary guidelines with relatively wide ranges in recommended prison sentence lengths and the option to depart, upward or downward, in “extraordinary cases.” According to the report, the guideline system “comes as close as the Commission can to a workable model that will reduce unwarranted disparity in sentencing while preserving, to the maximum extent possible, discretion of judges to fashion fair and just sentences in individual cases.” CONCERNS ABOUT DISPARITIES The guidelines recommendation was spurred by concerns that local judges have been left with too much discretion in sentencing. A commission analysis of D.C. Superior Court sentencing data from 1996 to 2003 revealed significant variations in sentencing across all crime categories. As any frequent practitioner in D.C. Superior Court can attest, individual judges do have varying practices and philosophies toward sentencing that can lead to markedly different sentences for similar offenses by similar defendants. Many practitioners have expressed concerns that judges are exercising their substantial discretion in the direction of harsher sentences. Indeed, information compiled by the commission shows that sentences calling for some period of incarceration have risen steadily from 58 percent in 2001, to 64 percent in 2002, to 66 percent during the first half of 2003. Sentences of probation — some 46 percent of all sentencing dispositions in 2000 — made up only 33 percent of all sentences for the first half of 2003. The minimum sentences for nonviolent crimes have remained consistent since 2000. The sentences for violent crimes, however, have increased. In view of these disparities, the new guidelines are an attempt to move more sentences toward a “historical center” — a middle 50 percent of historical sentences for a given crime that excludes 25 percent of the highest historical prison sentences and 25 percent of the lowest historical prison sentences — while at the same time not increasing or decreasing sentences for the average offender in the average case. The overall objective of the guidelines is aptly summarized in the report: “Basic fairness requires that similarly situated offenders should receive similar sentences for similar crimes.” According to the report, the use of relatively broad sentencing ranges, as opposed to specific and prescribed sentences, ensures that judges will still have discretion, and will be able to consider factors beyond offense severity and criminal history in determining an appropriate sentence. Typical mitigating circumstances may place the sentence in the low end, while common aggravating circumstances may place it in the high end. The commission believes that using relatively wide ranges, including the option of probation for low-end crimes, will promote fairness and make it more likely that judges will elect to depart from the guideline range only in truly exceptional cases. The guidelines do not apply where there is a minimum sentence required by statute, or where a judge accepting a guilty plea agrees to be bound by the sentence or sentencing range agreed to by the parties. (Superior Court Rules of Criminal Procedure allow for such agreements.) READING THE GRIDS To effectuate this structured sentencing system, the commission has developed a master grid, for all offenses except drug offenses, and a drug grid. The commission’s report, and the grids included in it, are available at http://acs.dc.gov. Each grid has a vertical axis corresponding to the seriousness of the crime and a horizontal axis that represents various levels of criminal history. The master grid establishes nine groups based on the seriousness of the offense; the drug grid establishes three. Both grids have the same numerical criminal history categories, spanning first offenders to those with multiple prior convictions. Accordingly, the master grid has 45 cells, and the drug grid has 15. Each cell, in turn, specifies, in months, a minimum and maximum prison sentence — the guideline range for the judge. The specific guideline range for an offense is a product of the severity of the crime, the criminal history of the offender, and the historical data on sentencing practices. Certain cells on each grid, indicated by the light-shaded cells, are for cases where a sentence of probation is permitted. These cells represent categories of cases where at least 25 percent of offenders have received probationary sentences, based on past sentencing practices. The cells that are shaded darkly indicate that an offender is eligible for a short split sentence, defined as a period of incarceration (typically not more than six months) followed by a period of probation. Where probation or a split sentence are permitted, and the court decides to impose such a sentence, the judge would look to the applicable sentencing range. Determining where an offender falls on the criminal offense severity axis appears straightforward. The greater challenges and potential problems lie in accurately determining a person’s “numerical criminal history.” The commission has devised a rather complex scoring system based, among other factors, on severity of the prior conviction, whether it has “decayed” (defined as being more than 10 years old) so that it should no longer be counted, and whether a decayed conviction has been “revived” by a subsequent felony conviction. Juvenile adjudications are scored at half the value of comparable adult convictions. Convictions from other jurisdictions are counted, but have to be matched based on elements of the subject crime to the most closely analogous crime under D.C. law. The reasons for a departure from the guideline range must be “substantial and compelling” and based on a non-exclusive list of mitigating and aggravating factors. Aggravating factors include deliberate cruelty to the victim, a victim of a particularly vulnerable age or reduced physical or mental capacity, a devastating injury, and an offense that is “significantly related” to organized crime or high-level drug trafficking. Mitigating factors include whether the offender made a good faith effort to compensate the victim for any damages or injury, participated in the crime under duress or coercion, appreciates the wrongfulness of his conduct, has provided substantial assistance to law enforcement authorities, or cannot be adequately treated or protected in a prison facility because of mental or physical impairment or infirmity. Notably, an offender’s demonstrated potential for rehabilitation is not specifically identified as a mitigating factor. Also not taken into account are any immigration consequences of criminal convictions, which are often draconian. Implementing these guidelines will likely lead to changes in pre-sentence procedures. For example, the commission recommends that pre-sentence reports, prepared by the Court Services and Offender Supervision Agency, include information on the applicable guideline ranges for subject offenses. The same agency also would need to correctly match out-of-state convictions with equivalent D.C. offenses to ensure that criminal history scores are accurate. The pre-sentence reports, typically available to the court, prosecutor, and defense attorney only two days before the sentencing, would be made available further ahead of time, allowing the parties adequate time to review, supplement, or correct information that relates to the guideline range. New procedures will require judges to acknowledge that they have considered the guideline recommendation and have complied with it, or explain why they departed from it, citing from the list of aggravating and mitigating factors. Even so, judges will not be sanctioned for noncompliance with the guideline system. It is expected that the D.C. Council will soon approve a pilot program for the voluntary guidelines that will run through December 2006. The commission has recommended that the D.C. Council not enact the guidelines into law until they have been “tested in the crucible of actual practice.” While the guidelines are voluntary, the commission expects “a high degree of compliance” from Superior Court judges. The commission plans to report regularly on compliance, continue to analyze sentencing data, examine the circumstances in connection with departures, identify areas in need of improvement, and propose revisions to the guideline recommendations. The commission is arranging training for judges, prosecutors, defense lawyers, and government staff on the operation of the new sentencing system, as well as developing a training manual and sentencing software. LOOKING TOWARD IMPLEMENTATION If a recent training session is any indication, some practitioners question whether these guidelines can be implemented fairly. One key issue is whether reliable information on a person’s criminal history will be provided to defense counsel in time to make informed decisions about plea and trial options. Other concerns relate to taking juvenile adjudications into account as part of the criminal history, the decision not to include a defendant’s potential for rehabilitation as a mitigating factor warranting departure, and, in general, reducing the very human enterprise of sentencing to a more statistical exercise. Judge Frederick Weisberg, the chairman of the commission, is nevertheless optimistic: “The commission believes it’s an important step toward more fairness in sentencing. We don’t claim perfection, which is the very reason why it’s starting off as a rather lengthy pilot project. We welcome comments on how we can improve it.” Paul Y. Kiyonaga, a partner at Kiyonaga & Soltis P.C. in Washington, D.C., specializes in criminal, employment, and international matters. He is also co-chair of the Steering Committee for the D.C. Bar Criminal Law and Individual Rights Section. The views expressed in this article are his own. Kiyonaga can be reached at [email protected].

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