STEP 16 – WHAT HAPPENS AT SENTENCING AND HOW DOES SENTENCING WORK?
The final step in a criminal prosecution is the sentencing of the defendant. Unlike the trial, the judge alone will determine what the sentence will be. The judge will have the aid of the presentencing report in determining the length and disposition (probation or imprisonment) of the imposed sentence. The judge will also be able to utilize the sentencing grid required by Kansas in arriving at the sentence.
Sentencing hearings take place in open court, just as trials do. The district attorney, defendant, and defense counsel will all be present. The structure of the hearing is somewhat similar to the trial, with the state addressing the court first. The district attorney will speak directly to the judge, pointing out evidence from the trial and sentencing report to argue for a sentence the state deems appropriate. Next, defense counsel will address the court directly, pointing to his own evidence that supports the defendant’s proposed sentence. Next, in cases in which there was a victim, either the victim or the victim’s family will have the opportunity to make statements to the court. Finally, the defendant will be allowed the last word for her- or himself. This may be the first and only time a defendant speaks in open court. Unlike testifying at trial, there is no advantage to foregoing this opportunity. After the defendant has spoken, the judge will announce the sentence. This is generally done directly following the presentations or after a very short recess. In longer, complex cases the judge may take a day or so to determine a sentence, but even in these cases this is rare.
When determining the sentence, the judge is not painting on a blank canvas. Instead, Kansas has enacted sentencing grids which generally dictate that a sentence must fall within a range of months. The grid will also provide a disposition of either imprisonment or probation. Together, these are called the presumptive sentence. To arrive at a presumptive sentence, the judge must input two numbers into the grid. The first is the crime severity level of the convicted offense. Crimes are given a severity level between one and ten, with one being the most severe. The defendant is also placed into a category based upon his or her prior convictions, labelled A through I. I is the least severe category, covering defendants with one previous misdemeanor conviction or no prior convictions at all. The category increases based upon the number of person felony, nonperson felony, and misdemeanor convictions the defendant has. Using these two numbers, the judge will be given a presumptive sentence that indicates a disposition and duration range.
Certain facts will be viewed as “aggravating factors” and require that the court impose a harsher sentence. These are generally acts that, while not necessarily illegal, the Kansas legislature wants to be taken into account during sentencing. For example, when a firearm is used in committing a felony, the presumptive sentence will automatically be for imprisonment despite where the offense falls on the sentencing grid. Thus, in State v. George, the defendant was convicted of battery for hitting his victim with an unloaded gun. This caused the defendant’s presumptive probation to be upgrade to presumptive imprisonment.
Conversely, certain facts are considered “mitigating factors” that reduce the disposition or duration of a presumptive sentence. These are generally in the form of alternatives to imprisonment, such as alcohol or drug treatment programs. However, these are often available based upon particular facts, but ultimately left to the discretion of the sentencing judge. The idea behind this discretion is that space in treatment programs are limited. The legislature trusts that the trial judge will be able to make a determination from the evidence, presentencing report, and statements during the sentence hearing. This discretionary power allows for the best method of rationing out the limited bed spaces for these programs.
A judge is not required to order the presumptive sentence in every case. A departure can be dispositional, placing a defendant on probation rather than in prison. It can also be durational, granting a sentence length outside the recommended range. A defendant can motion the court for a downward departure during the sentencing hearing. The judge must find “substantial and compelling” reasons to depart from the presumptive sentence and will note these reasons when announcing the departure. These reasons can include the defendant’s amenability to rehabilitation (as in State v. Bolden), acceptance of responsibility for the crime (as in State v. Bird), or the defendant caused only slight harm compared the usual type of crime (as in State v. Warren).
On the other hand, the state can request an upward departure. Just as with downward departures, this can change either the disposition, duration, or both. Again, the standard is “substantial and compelling” reasons to justify the departure. Reasons to grant upward departures include crimes motivated by hate towards a race, gender, or religion (as in State v. Stawski).
After hearing all relevant evidence and requests for departures, the judge will announce the sentence. If a departure was granted, the judge will also note the substantial and compelling reasons for departing. This announcement will be made in open court and on the record. The judge will inform the defendant of the right to appeal before concluding the hearing and the case. If the presumptive sentence was for imprisonment, the defendant will be taken into custody to await transport to prison. If the sentence was for presumptive probation or treatment, the defendant will be required to make arrangements with the proper entities for supervision or enrollment in the program.