In some cases the evidence is overwhelmingly bad for a defendant and if it is a serious crime the defendant may be looking at serious prison time. No one likes to talk about it but in some cases a lawyer’s job can become not, “how can I beat the case,” but “how can I save my client from going to prison for a very long time.” In those cases all is not lost. In those cases a lawyer will focus on trying to minimize the amount of time that a person spends in prison. This is where a dispositional departure motion may be filed. This type of departure is durational in nature and seeks to modify the length of the sentence, rather than the type of sentence. The State may ask for an increased sentence via a durational departure motion, or a defendant may ask for a reduced sentence using the motion. Again, the party that makes the motion must offer a reason the sentencing grid should not be followed. A sentencing judge may also decide to make a durational departure without a motion, so long as the reasons for the departure are laid out and notice given to both sides. Remember, durational departure motions work both ways. Your lawyer can ask for less time or the State can ask for more time.

Why Grant A Durational Departure?
The same policy goals that support the sentencing grid’s determination of imprisonment or probation also support the presumptive length the grid recommends. Based on this fact, durational departures also require “substantial and compelling reasons” that must be proven by the party seeking the departure. The reasons offered by Section K.S.A. 21-6815 apply equally to durational departures, but courts have found slight variations between what justifies dispositional and durational departures in practice. Below are examples both statutory and court-decided compelling reasons to grant a durational departure, either enhancing or reducing a defendant’s sentence length. 

Statutory Compelling Reasons For Downward (Reduction) Departure

  • Victim Was Aggressor Or Participant
    If the victim of the crime willing participates or is the aggressor, a departure is warranted. For example, in State v. Sampsel, the defendant was convicted of furnishing alcohol to a minor and engaging in indecent liberties with the victim. The victim testified, however, that she requested Sampsel purchase the alcohol for her to consume and willingly engaged in sexual activities with him. The court found that this willing participation by the victim justified a reduction in Sampsel’s sentence time by 20 months.
  • Defendant Participated Under Duress
    Just as with dispositional departures, a defendant that commits a crime under duress may have their sentence reduced in duration. However, the involvement of the defendant must be slight, and it is likely the duress must be fear of safety, as indicated in State v. Wolf. Though Wolf was a dispositional case, its underlying tone suggests that the facts capable of justifying this compelling reason must be similar, though quantitatively less than, the defense of duress. It will be interesting to see how this compelling reason is further defined by cases. 
  • Defendant’s Physical Or Mental Impairment
    The impairment of the defendant, whether the impairment is physical or mental, can serve as reason to depart from the sentencing grid. A defendant’s immaturity and age were found to be such an impairment in State v. Favela. The defendant was a minor that witnessed the intended victim stabbing his brother. Favela sought out the intended victim and threatened to kill him, despite being surrounded by police officers with drawn weapons. The defendant was ultimately taken into custody peacefully after calming down from the traumatic incident. The court found that defendant’s youth and resulting immaturity led him to be unable to process the stabbing of his brother appropriately. This served as a sufficient impairment, justifying the reduction of Favela’s sentence by 35 months. It is important to note, however, that by statute the use of alcohol or drugs cannot serve as impairment under this compelling reason.
  • Victim Abused Defendant Or Defendant’s Children
    Just as with dispositional departures, in limited circumstances abuse by the victim directed at the defendant or the defendant’s children is a statutory reason to grant a durational departure. The language of the provision requires a continued pattern of abuse, as well as the crime being committed in response to such abuse. This compelling reason has been incorporated by the Kansas legislature, but not yet visited by the Kansas appellate courts.
  • Harm Caused Was Slight
    Crimes can cover a wide array of outlawed behaviors, ranging from severe to very little harm being caused. If the crime before the court resulted in a small amount of harm based upon what is reasonably expected from that type of crime, a court may grant a departure based upon this fact. In State v. Warren, the defendant was convicted of smuggling drugs into prison. However, the defendant was found to have only a small amount of marijuana, likely enough for two cigarettes. The court determined that when compared to other contraband that is smuggled into prisons, such as weapons and “hard” drugs, both the nature of the contraband and amount justified a departure in the duration of the defendant’s sentence.
  • Defendant Is A Veteran Suffering From Combat-Related Disorder
    A defendant suffering from post-traumatic stress disorder, or a similar illness caused by combat on behalf of the United States, has a compelling reason for durational departure in her favor. The ailment must have impaired the defendant to the point of causing her to commit the crime. This provision has yet to be explored in the Kansas judiciary, but it is likely to be treated as a variation of the mental impairment reason to depart.

Court-Decided Compelling Reasons For Downward Departure 

  • Defendant Accepts Responsibility For Crime
    By accepting responsibility for the crime committed, a defendant may receive a durational departure. In State v. Bird, the defendant pled guilty to his crime shortly after being arrested, and admitted at his sentencing hearing that he was responsible for his own drug addiction. The sentencing court found these two actions sufficient to justify depart, noting that the defendant had saved the State a great amount of time, money, and resources by foregoing a costly trial. The Kansas Supreme Court agreed, and approved the durational departure from 37 to 24 months.
  • Defendant Poses No Threat To Society
    A court may consider the level of threat a defendant poses to society, finding that a defendant posing a small or no threat appropriate for a downward departure. This reason does not appear in the statute controlling departures, but was recently reaffirmed to have survived the 2011 amendment by the Kansas Supreme Court in State v. Bird. There, the court approved of the sentencing court’s decision to reduce Bird’s sentence, based in part on findings that he was regarded as peaceful, mild-mannered, and non-violent. It is important to note the court suggested it wouldn’t simply take a defendant’s word that she fits this description; instead there must be objective evidence, such as testimony of third parties or examples of involvement in the community—such as the evidence produced by Bird.
  • Defendant Has Children To Care For And Is Amenable To Rehabilitation
    Just as with dispositional departures, courts find these two factors together capable of supporting downward departure in duration of a sentence. In State v. Crawford, the sentencing court found the defendant’s strong employment record and efforts at rehabilitation while incarcerated awaiting sentencing evidence of ability to be rehabilitated. Further, the defendant had three young children she was responsible for raising. Together, these two justified the court’s decision to shorten the Crawford’s sentence.

Statutory Compelling Reasons For Upward (Increased) Departure

  • Vulnerable Victim
    When a victim is particularly vulnerable based on her age, impairment, or illness, the court may enhance the sentence by lengthening it. For example, in State v. Keniston, the defendant’s sentence for rape was increased due to the victim’s age. There was evidence to show that the defendant chose the victim based upon the likelihood that she would not be able to escape him. Based upon this vulnerability, known to the defendant, a sentence enhancement was appropriate.
  • Excessive Brutality
    When a crime is committed in a particularly brutal manner the sentence may be increased in duration. In State v. Jackson, the defendant shot an unarmed bouncer. He then shot every patron that attempted to come to the aid of the injured man. The court found this action to be extremely brutal, even for the voluntary manslaughter charge defendant was found guilty of. The Kansas Supreme Court agreed with the sentencing court upholding the durational departure on appeal and noting the extreme disregard for human life and compassion Jackson had displayed.
  • Hate Crimes
    If a defendant is motived entirely or partially by a victim’s race, religion, ethnicity, or sexual orientation, this serves as a compelling reason to increase the length of the defendant’s sentence. This compelling reason has been applied in the context of dispositional departures, and it seems likely courts would find that application a strong source of guidance in applying the reason to durational departures. Thus, it may be worth reading the description of dispositional departures based upon hate crimes above.
  • Violation Of Fiduciary Relationship
    The law recognizes that certain relationships may place an individual in a position of dependence and trust on another. When the defendant violates such a relationship in committing a crime, the court may impose a durational departure to enhance the sentence. An example of this comes from State v. Horn. Horn was a family-friend of the victim, often being asked to watch over the young boys. Horn used this relationship to gain unsupervised access to the boys, and commit sexual acts with the children. This clear violation of the fiduciary relationship between himself and the children was found by the court to be a compelling reason to depart and grant the maximum sentence allowed by law.
  • Defendant Enticed Minor To Commit Crime
    A defendant that entices a minor to commit a crime may have her sentence enhanced by durational departure. Kansas appellate courts have not had a chance to pass on this compelling reason in the context of durational departures, but have approved of its application in the dispositional context in State v. Martin. That case is the likely source of inspiration that led to the inclusion of this compelling reason in the 2011 amendments to the Kansas sentencing statutes. A further discussion of the Martin case is available above.
  • Sexually Violent Crime Committed By Predatory Sex Offender
    This substantial and compelling reason requires two factors to be applied: the crime being sentenced for is considered a “sexually violent crime,” and the defendant is considered a “predatory sex offender” based upon a previous conviction for a sexually violent crime. A sexually violent crime is defined as one involving any sexual activity with a person under 14 or nonconsensual sexual activity with a person of any age. Thus, in State v. Tiffany, the defendant was sentenced for indecent liberties with a child, a sexually violent crime. In addition, his previous conviction for rape made him a predatory offender, and the fact the conviction was from another state did not affect this classification. These two factors together resulted in a durational departure upward, doubling his sentence length.
  • Defendant Committed Crime While Incarcerated
    A crime committed by a defendant while she is incarcerated is a statutory reason to enhance the sentence for that crime. This is a recent addition to the statutory laws regarding sentencing, and it was likely produced in response to a decision the Kansas legislature did not agree with: State v. Warren. Warren was granted a downward departure for other reasons, though his crime was smuggling contraband into prison. The inclusion of this compelling reason for enhancing a sentence was likely done to ensure a case based upon the facts of Warren would produce a different result today.
  • Organizer Of Crime
    As with dispositional departures, the leader of a multiple-participant crime may receive an enhanced sentence. For durational departures, this would be in the form additional time the defendant is required to serve. This compelling reason was added by the Kansas legislature, and as of yet has not been reviewed on appeal in either the dispositional or durational departure context.

Court-Decided Compelling Reasons For Upward Departure

  • Prior Convictions Of Similar Crimes
    A defendant’s prior convictions of similar offenses may justify an enhancement of length of a defendant’s sentence. For example, the defendant in State v. Gideon had his sentences for murder, kidnapping, and rape all enhanced because of the similarities in his previous crimes of rape and criminal sodomy. The Kansas Supreme Court agreed with the sentencing court’s determination, noting that the facts of each conviction were very similar, indicating that Gideon had learned nothing from his previous punishments. The court also noted that a sentencing court must ensure the facts of each conviction are similar enough to serve as compelling reasons, because the defendant’s criminal history is already effecting the defendant’s criminal history.Remember, filing a motion for a downward durational departure can be the difference in spending a lot of time in prison versus spending a small amount of time in prison. Additionally, having an upward durational departure motion filed against you can be the difference in spending months in prison versus spending years in prison. When you are facing serious prison time it is your lawyer’s job to file motions like the downward durational departure motion to minimize your time in custody.