HOW DO YOU GET PROBATION IF YOU'RE LOOKING AT PRISON TIME?

Kansas utilizes a “sentencing grid” when determining the length of a defendant’s sentence. The grid looks to the crime’s “severity level” and the defendant’s criminal history score, a measure of the defendant’s criminal history. Using these two factors, the grid will give the sentencing court a range of months the defendant should be sentenced, along with whether such a sentence should be served in prison or on probation. This result is known as a “presumptive sentence,” and normally it will be the sentence the court orders. However, the Kansas legislature realized that not all defendants will fit neatly into these boxes. Thus, the court is permitted to grant “departures” from the recommended sentences. These departures can be either in terms of an alternative sentence length, or placing the defendant in prison or on probation against the recommendation of the sentencing grid. Below is a brief overview of these departures.

Dispositional Departure
The first type of departure is “dispositional.” This alters the disposition of the sentence, meaning a sentence of imprisonment would be changed to probation or vice versa. Either the State or a defendant may file a motion for dispositional departure, offering reasons to the court that justify going against the sentencing grid. Though rare, the judge may decide to make a dispositional departure from the grid on her own. This is permissible so long as the State and defendant are notified, and the court states reasons for its decision to depart from the sentencing grid.

Why Grant A Dispositional Departure?
The sentencing grid was enacted to accomplish certain goals, including: (1) reserving incarceration for offenders that are threats to the public; (2) imposing uniform punishment to all defendants, based upon the severity of the harm the crime produced; and (3) allocating the limited resources available to the criminal justice system. Thus, the presumptive sentence should be the norm, with departures only being granted for “substantial and compelling reasons.” Thus, the moving party—the party making the motion for the dispositional departure—must produce evidence showing these substantial and compelling reasons. Some reasons are laid out in the statutes concerning sentencing, most notably K.S.A 21-6815. Below are examples of what have been found to be substantial and compelling reasons, either by statutory language or court decision.

Statutory Compelling Reasons For Downward (Probation) Departure 

Victim Was Aggressor Or Participant
When the victim of defendant’s crime is a willing participant or aggressive adversary, departure may be appropriate. In State v. Grady, the defendant was summoned to the victim’s residence by a third-party. The third-party was the ex-wife of the victim, and was being assaulted when she phoned the defendant for help. Upon arriving, the victim ran out of his home with a large meat cleaver towards the defendant, and was killed when defendant fired a gun at him. The sentencing court found that the aggressive nature of the victim, though not enough to satisfy as self-defense, was enough to mitigate Grady’s sentence from imprisonment to probation. The Kansas Supreme Court agreed with this assessment, noting that the fact the victim is armed will affect several aspects of a prosecution—defining the offense, as an affirmative defense raised by defendant, and as a substantial and compelling reason for mitigating a sentence—but the results for each may be permissibly different.

Defendant Participated Under Duress
A defendant that plays only a minor role in a crime and does so under duress, may have her sentence changed to probation from recommended imprisonment. The statute states this is permissible even when the defendant fail to succeed in raising a defense of duress. This mitigating factor does not seem to have reached the Kansas appellate courts with success, but it was unsuccessfully raised in State v. Wolf. In this recent case, the trial court was unpersuaded that the defendant committed her part of a robbery under duress based upon her need for money to pay her medical bills. Based upon this decision and the statutory language, the court will likely require something closer to—but not quite—the defense of duress, which is based upon fear of one’s own or a loved one’s safety, rather than economic wellbeing.

Defendant’s Physical Or Mental Impairment
This compelling reason requires the defendant to have been impaired to the point that she lacked proper judgment at time she committed the offense. However, drugs and alcohol consumption cannot be the cause of this impairment. In State v. Ussery, the defendant’s youth and immaturity, taken with the fact that he was being pressured by three older friends to engage in criminal activity, was seen as a reason to sentence the defendant to probation rather than imprisonment. The court was careful to note that a defendant’s age alone is not enough; there must be some addition indication of impairment. For Ussery, it was the intense peer-pressure from his co-defendants, which was confirmed by the victim’s testimony that Ussery had to be encouraged and “bullied” by his co-defendants.

Victim Abused Defendant Or Defendant’s Children
When the defendant or the defendant’s children are abused by the victim of defendant’s crime, the court may grant a downward disposition from imprisonment to probation. However, the language of the statute qualifies this reason in three ways. First, the abuse must be a continuing pattern, meaning a single instance of abuse, perhaps even if intensely violent, is likely not enough. Second, the abuse must be physical or sexual, meaning verbal, emotional, and mental abuse alone is not sufficient. Finally, the crime must be committed in response to such abuse. Thus, if the victim abuses the defendant, but the abuse has nothing to do with the decision to commit the crime, the reason will not be compelling enough to justify departure. This relatively new provision has not yet found its way to appellate review, but the above qualifiers would all need to be present to appropriately apply this reason.

Harm Caused Was Slight
Crimes often run the gamut of severity, even within the defined terms that differentiate similar offenses. Thus, a court is permitted to look to the fact that a defendant’s actions cause less harm than would be typically expected from the type of crime for which she is convicted. For instance, the defendant in State v. Favela was convicted of attempted murder. However, he had attempted to murder the victim while surrounded by police, all having their weapons pointed at Favela. Favela stood, surrounded by these officers, with his weapon at his side while staring down the victim. He made multiple threats that he was going to shoot, but never pointed his weapon at the victim for fear of being shot himself. The victim testified he understood Favela’s anger, and never felt afraid during the attempt on his life because of the placement of the weapon and police presence. The court found this to be a strong example of how a crime that normally has serious emotional consequences had relatively little effect on the victim’s life, as supported by his own testimony. Thus, probation rather than imprisonment was appropriate for this and other compelling reasons.

Defendant Is A Veteran Suffering From Combat-Related Disorder
A defendant that commits a crime as a result of a disorder or injury suffered while serving in the military may have her sentence departed to probation. The main thrust of this statutory compelling reason is likely to address veterans that commit acts stemming from post-traumatic stress disorder. This compelling reason has not yet reached the Kansas appellate courts. However, it seems likely that any circumstances that fit this narrow reason would easily fall under mental impairment at the time of the crime, another compelling reasons which has been visited and further defined on appeal. 

Court-Decided Compelling Reasons For Downward Departure 

Period Of Good Behavior Despite Criminal History
The sentencing grid will always take into account past convictions, not matter how long ago they occurred. The court has established that convictions from long ago, particularly those committed in one’s teenage years and early-twenties, may require a harsher sentence without accounting for long periods of law-abiding behavior by the defendant. In State v. Heath, the defendant was convicted of involuntary manslaughter following an accident caused by his intoxication. The defendant had a troubled youth, resulting in multiple burglary convictions from age 18 to 22. However, these all occurred nearly 15 years prior to the current conviction, and were unrelated to the crime at issue. The court found that it was appropriate to grant probation rather than prison time based upon the period of good behavior by the defendant.

Defendant Has Children To Care For And Is Amenable To Rehabilitation
Though the court has noted that neither having children to care for nor being particularly amenable to rehabilitation individually are enough to justify departure, the Kansas Court of Appeals has found together these factors are substantial enough to justify probation over prison. This determination was made in State v. Crawford, where the defendant’s willingness to seek help and level of intelligence were found to be key indicators that she was capable of reform. When this was coupled with her need to raise three young children, the sentencing court found probation to be justified over the grid’s recommendation of imprisonment. The appellate court agreed, noting that these factors together can be a compelling reason for departure.

Statements By The Victim Or Victim’s Family
The court may consider statements by the victim or the victim’s family as either mitigating or aggravating factors. Thus, statements that a victim suffers negative, long-lasting effects of the crime may be used to enhance a sentence from probation to imprisonment. This was the case in State v. Zuck, where the victim testified she required therapy to overcome the fear resulting from the criminal activity of the defendant. The court determined that the harsh effects of the crime justified placing the defendant in prison rather than on probation. On the other hand, statements from a victim’s family expressing understanding that the defendant did not mean to cause the harm he did may be seen as a compelling reason to depart the sentence downward to probation. This was part of the reason the court felt a dispositional departure was appropriate in State v. Heath, where the defendant and victim were close friends involved in a drunk driving accident that resulted in the victim’s death.Remember, this list is not written in stone. There court can always decide that a “substantial and compelling” reason exists to depart from the sentencing grid. It will be up to you lawyer to argue your case and get the judge to give you probation instead of prison.