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.
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.