Wednesday, March 24, 2010

Mismatch: when the defendant and the crime don't go together

I have posted before about the way prosecutors handle cases, from the moment we get the file to how we make a recommendation as to sentencing. That blog post is here. But I got a new case yesterday that highlights an old problem, one of the hardest part of the job: making recs.

In many situations, arriving at an appropriate range of punishment is relatively straight forward because in most cases there is a history that fits the present crime. In other words, if someone has two or three misdemeanor drug convictions I'm comfortable recommending felony probation with treatment (as opposed to ten years in prison on the one extreme, or a reduction to another misdemeanor on the other extreme).

The difficulty comes when there is a mismatch between the criminal history and the crime charged, and this presents in two ways:
  • The defendant who has NO criminal history but does something very serious, say killing someone while driving drunk or hurting someone by just being reckless
  • The defendant with a huge criminal history who does something fairly minor. For example, someone with a murder conviction, robbery conviction, drug and assault convictions, who then uses someone's car without permission but returns it undamaged.
These are the hard cases, I'm sure for the defense bar as well as for us. And extra wrinkles appear (in the first example) when there is a victim who seeks the maximum while we are trying to temper justice with mercy. Believe me, when we get those cases there is a lot of discussion at every level, running it by colleagues, talking to the higher-ups, and meeting with the victims.

I'm at the start of that process now with my new case, and if my memory permits, when it's all over I'll post some details and maybe get your feedback. In fact, my wife suggested these cases are best tried to a jury so the community (or a slice of it) can decide the outcome. She may be right, but I hate to abdicate my own responsibilities. I'll noodle on it.


  1. I have one of those cases now, in the first category. A milquetoast who is charged with committing a very serious crime of opportunity. The right thing to do is a real head-scratcher, for both me and the ADA.

  2. A question from the legal sideline. Is this totally your decision or does it take you and your supervisor ("higher up')? I would be interested in the formal rule and what happens informally (which I think you covered above). Thank you.

  3. There's no formal rule, really. Basically, the more difficult the decision, and the more serious the offense, the more people will be involved in the discussion - me, my court chief, someone (or several someones) higher up, and the victim, if there is one. One of the good things about my uber-boss is that she's very willing to sit down and talk out these cases, give her input and the benefit of her experience.
    For the cases where the defendant has a long history but the crime is less serious, that'll probably just be me and my chief talking about it.

  4. this is prosecutorial discretion at its finest, and probably the thing that attracts me most to being a prosecutor.

    how much of a difference is there between your initial bargaining position in these types of cases and what you'll eventually plea it down to?

    for example, for the defendant with the long criminal history who commits a minor crime, would you start at a short prison sentence and allow a plea down to probation? or would you start at a long prison sentence and allow a plea down to probation?


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