CAN A JUDGE ORDER AN UPWARD DEPARTURE FROM THE PRESUMPTIVE SENTENCING GUIDELINES IF THE CRIME WAS RACIALLY MOTIVATED?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Stawski, 271 P.3d 1282 (Kan. Ct. App. 2012).
This case answers the following question:
Can a judge order an upward departure from the presumptive sentencing guidelines if the crime was racially motivated?
The issue in this case is whether a judge can order an upward departure from the presumptive sentencing guidelines for a crime motivated by hate towards a race, gender, or religion. A departure is permitted when the sentencing court finds substantial and compelling reasons for the departure. In the determination of whether substantial and compelling reasons for a departure exist, the sentencing court may consider a nonexclusive list of aggravating factors, including that the offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin, or sexual orientation of the victim.
This case involves two neighbors, Stawski and Carter, who had a history of issues and incidents. Carter was a black man and a member of the Kansas National Guard. In 2008, Carter opened an envelope that had been mailed to his house by an anonymous person. Inside the envelope were three sheets of paper which had pictures and words printed from different websites. These pictures and words referenced black people being hung, specifically black soldiers, and the word “KKK” was handwritten on all three sheets. While the envelope was sent anonymously, Carter had a large suspicion that his neighbor, Stawski, was responsible. Throughout 2008, Carter had filed sixteen different complaints against Stawski about Stawski’s dogs running at large. As further evidence that Stawski was behind the letter, Carter reported that every time he called the police about Stawski’s dogs, Stawski responded in some provocative manner, such as posting signs in his yard (“Dogs don’t bite, people do.”) or putting nails on the Carters’ driveway. After an investigation, law enforcement officers charged Stawski with aggravated intimidation of a witness or victim and criminal threat because of DNA that was recovered from the envelope and matched Stawski’s DNA profile. The district court granted the State’s upward departure motion.
A departure is permitted when the sentencing court finds substantial and compelling reasons for the departure. In the determination of whether substantial and compelling reasons for a departure exist, the sentencing court may consider a nonexclusive list of aggravating factors, including that the offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin, or sexual orientation of the victim. Stawski claimed that the district court made an error in granting the upward departure because while the means used to threaten Carter were racially offensive, Stawski’s motive in committing the crime was not related to race in any way, but rather he was motivated by retaliation for the complaints about his dogs.
The State argued that the letters in the envelope were evidence of the motivation for the crime because they were specifically selected to target Carter; the same images and words would not have had the same affect on a white person. Further, Kansas state law does not require that a defendant’s motive for committing a crime be entirely based on a victim’s race or skin color, just that it is based in part. The court also noted that it was significant that Stawski did not communicate an ordinary, run-of-the-mill threat to commit violence, but rather he sent an anonymous letter with pictures and words that had the power to send a very specific message. The message was to commit violence to the Carters or any members of their race with similar skin color. The court found it significant that even Stawski himself acknowledged the powerful message that the image of a black man being hung along with the word KKK would have on a black man.
The court ruled that ordinarily the actions of Stawski would have resulted in a presumptive sentence of probation. However, the court gave two reasons why the sentencing court did not err in granting the upward departure from the presumptive sentencing guidelines. The first reason is that the racist nature of the offense caused great emotional distress to the Carters. The second reason is that Stawski failed to realize that his threats were especially heinous given their racial nature.
The Court of Appeals of Kansas found that the reasons for an upward departure from the presumptive sentencing guidelines were substantial and compelling.