Frank A. Rubino , ESQ.

FEDERAL AND INTERNATIONAL CRIMINAL DEFENSE

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Federal Sentencing in the News, Part 1

Several high-profile stories are drawing renewed attention to the ways in which federal judges impose prison sentences in some cases. Despite decades of efforts to reduce unfair differences and the large degree of variation between apparently similar cases in front of different judges, serious concerns still exist with the sentencing system.

This will be the first in a four-part series that looks at these sentencing stories and the criticisms they are provoking from many observers here in Miami and around the nation.

In Florida federal criminal trials, the case unfolds in two parts. The first part determines whether the defendant is guilty - this can occur either as the result of a plea or a jury trial. If a defendant is deemed guilty, the case proceeds to the second portion in which the judge determines an appropriate penalty. This portion is known as the "sentencing phase."

It is worth noting that the judge alone is responsible for choosing a sentence. This means that the jury normally plays no role in this decision. Although prosecutors often offer plea deals to defendants, any promises about punishment are only recommendations to the judge. Judges are free to ignore those recommendations and impose a heavier (or lighter) sentence.

Judges have a lot of discretion to choose the penalty - but there are some limits. The most important limit exists in the United States Constitution's rule against excessive fines and cruel or unusual punishments. Courts have interpreted this limitation into a complex and nuanced set of rules that judges must obey.

Another limitation also applies to sentences. After years of careful observation and research, a federal commission created the United States Federal Sentencing Guidelines to try to create a more orderly and uniform sentencing process. The Guidelines look at two things: the conduct involved and the defendant's individual criminal history.

By combining these factors, the Guidelines recommend a sentence range. Despite heavy encouragement to abide by the Guidelines' recommendations, judges are still free to choose something else. For example, federal judges often consider child pornography penalties to be excessively harsh - those judges sometimes refuse to impose the recommended sentences and choose something that they think is more suited to the crime.

Other factors also influence this process, including various circumstances involved in the crime and requests or statements from any victims. In the real world, these factors could very well play a bigger role in sentencing decisions than the Guidelines themselves - a source of real concern for many experts.

Check back throughout the week for more stories of sentencing decisions and the problems that they might raise for the judiciary and defendants.

Source: FindLaw, "Factors Considered in Determining Sentences"

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Coral Gables Office

Frank A. Rubino, Esq.
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