FELONY SENTENCING

1. FELONY SENTENCING J. Richard Couzens Placer County Superior Court (Ret.)

2. The Order of Things • Taking a plea • Opening comments • Probation • Suspend or not suspend • Basic state prison/county jail sentence • Concluding the sentence

3. Multiple counts and cases • Sentence after VOP • Misdemeanor cases • Cruz waivers • Recall of sentence • Indeterminate sentences

4. Taking a Plea • State the terms of the plea • Advise and waiver of rights • Direct consequences of plea • Factual basis • Police report reference (Holmes) • Findings • Additional waivers (if appropriate)

5. Referral to Probation • Generally mandatory for felony cases • Report may be waived • By stipulation (P.C. § 1203(b)(4)) • On sentence to prison (PC. § 1203c) • Sentencing set within 20 judicial days • Parties entitled to service 5 days prior to sentencing

6. Objectives of Sentencing • Protection of society • Punishment • Encourage defendant to be law abiding • Deterrence of others from crime • Incapacitation • Recovery of restitution • Uniformity in sentencing

7. SENTENCING USING EVIDENCE-BASED PRACTICES

8. The Problem….. • No money • No sustainable state funding • Under-funding & large caseloads • High recidivism & revocation rates • Approximately 52,000 sent to prison • 20,000 (40%) on revocations • $1 Billion annual cost • 70% commit crimes after release

9. The Challenge…. Reduce recidivism where ever possible Lower state prison and parole costs Increase public protection through reduction in recidivism Goal is to change anti-social behavior, not temporary control while on probation

10. Purposes of Sentencing… 1. “Just Deserts:” punishment proportionate to offense and culpability 2. Public Safety • Rehabilitation • Specific Deterrence • Incapacitation/Control • General Deterrence 3. Restitution/ Restoration of community

11. What It Is…..and What It Is Not….. • EBP is … • More information about offender • One added tool to use among many • Better management by probation • Overall reduction in recidivism • EBP is not … • Telling you how to sentence • Replacing independent judgment

12. Where Do Courts Fit In? This is a reasoned, methodical attempt to apply validated principles of case management to the criminal justice system We are being asked to support probation in its effort to implement EBP We are being asked, at very least, to do no harm

13. What is EBP? “[S]upervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under probation, parole or postrelease supervision.” P.C. § 1229(d)

14. Where Does It Come From? • Washington State Institute for Public Policy • Meta-analysis of 571 studies • “Cautious” approach – discounted results • Adult EB programs reduce recidivism by 10-20% • Moderate increase in use of EBP would avoid two new prisons, save $2.1 billion, and reduce crime rate by 8%

15. Professional practice supported by the best research evidence: • Rigorous evaluation (i.e., use of control groups • Replicated in multiple studies • Systematic review (meta-analysis)

16. Principles of EBP….. Risk Principle (Who) Needs Principle (What Factors) Treatment Principle (What Works)

17. Risk Principle (Who) The level of supervision or services should be matched to the risk level of the offender; i.e., higher risk offenders generally should receive more intensive supervision and services “Risk” refers to the risk of re-offense, not the relative seriousness of either the crime committed or the potential re-offense

18. Recidivism rates absent treatment Likely recidivism with effective correctional intervention ExtremeHigh LowMedium High-ExtremeHigh Medium MediumHigh Low High

19. Travis Co., Texas: Impact of Supervision by Risk

20. Needs Principle (What Factors) Static: Unchanging factors from past Dynamic: Changeable factors in future The targets for intervention should be those offender characteristics that have the most effect on the likelihood of re-offending.

21. Heart Attacks… Elevated LDL and low HDL Smoking Diabetes Hypertension Abdominal obesity Psychosocial (stress or depression) Failure to eat fruits and vegetables daily Failure to exercise

22. Dynamic Risk Factors… Anti-social attitudes Anti-social friends and peers Anti-social personality pattern Family and/or marital factors Substance abuse Education Employment Anti-social leisure activities

23. Actuarial Risk/Needs Assessment Engine that drives EBP Validation Reliability Intended to inform judgment Re-assessment with changes

24. Proper Use of Assessment Helps identify appropriate level of supervision and services Helps identify dynamic risk factors and appropriate conditions of probation Helps determine amenability to probation supervision and treatment

25. May use low-risk score to grant probation Should not use high-risk score to deny probation or set term May use dynamic risk factors in determining whether to grant or deny probation All information should always be used along with all other available sentencing information

26. Probation Conditions • Target most critical dynamic risk factors • Treatment conditions – order def successfully complete • Monitoring/control conditions – drug tests, EMP • Framework for case plan • Be realistic and flexible with plan • Avoid plea bargaining specific conditions

27. Treatment Principle (What Works) The most effective services in reducing recidivism among higher risk offenders are cognitive behavioral interventions based on social learning principles.

28. Social Learning:Behaviors Have Consequences PositiveNegative • Rewards • Swift, certain, and • Reinforcement proportionate (fair) • Incentives • Severe sanctions not necessary

29. What Works… Role modeling Demonstration Role play Feedback Skill practice Motivational interviewing

30. What Doesn’t Work…. Shaming programs Drug education programs Prevention classes based on fear or emotion Non-action oriented group counseling Intensive supervision without treatment Non-skill based education programs Freudian approaches

31. Behavioral v. Non-Behavioral % Reduced Recidivism K = 77 K= 297

32. Probation Violations • One size does not fit all violations • Nature and severity of violation • Extent of prior compliance • Risk re-assessment • Swift, certain and proportionate sanctions • Graduated sanctions and services • Incentives and reinforcement to avoid VOP’s • Relapse is natural

33. But There Still Is No Money! Will provide judges reliable and relevant information for sentencing Minimal change can have significant results Principled way of making management decisions – data to back up Builds data base of needs May identify programs and strategies that don’t work

34. Shift services to people most in need EBP did not create these issues; it only exposed them and has offered a viable solution …and it is the right thing to do

35. What Court Will Consider • The file • The probation report • Statements in mitigation or aggravation • Private probation report • Testimony of witnesses – P.C. § 1204 hearing

36. Opening Comments • Call the case • State what was read and considered • State tentative decision • Comments • Probation officer • DA • Victim – P.C. § 1191.1 and Prop 9 • Defendant

37. Any legal cause preventing judgment? • Pending motion for new trial • Defendant not competent • Service of probation report not timely • Waive formal arraignment? • Have defendant rise for pronouncement?

38. RULE: It’s A Matter of Choice When the court is faced with sentencing choices, generally a statement of reasons for the court’s decision must be given on the record.

39. Eligibility for Probation • Presumptively eligible • Must state reasons if denyprobation • Eligible only in unusual cases • Must state reasons if grant probation • Not eligible under any circumstances • No reason needed to deny probation

40. Factors to Consider • About the crime • Seriousness: weapons, injury • Vulnerability of victim • Sophistication • Unusual circumstances [mitigation] • About the defendant • Prior record • Ability to comply with probation • Dangerousness

41. Case No. 1 • Crime: P.C. § 459 – 2d • Facts: • Defendant is 20 years old • Enters a store at night to steal computer gear; confessed he needed money to support drugs • Record: • Juvenile: (2) misd. and (1) fel drug poss • Adult: DUI, petty theft and resisting arrest, felony theft [on 5 yrs probation, waiting for program, 3 dirty tests]

42. Case No. 2 • Crime: P.C. § 182(a)(1)(4) – conspiracy • Facts: • Defendant is a 55-year-old auto sales person • Added false costs to auto deals to increase commission – received $350,000 fraudulently • Total loss to insurance: $1.45 million • Defendant willing to “sing” • Record: • None

43. Case No. 3 • Crime: P.C. § 289(h) – sex with object • Facts: • Defendant 44; HBD; victim 18, niece • Inserts finger in vagina during “horseplay” • Defendant pled early • In counseling; prognosis good, but potential risk if drinking • Victim does not want prison

44. Record: • Juvenile: • Felony drug possession • Charge of unlawful sex, dismissed • Adult: • 1991 Unlawful sexual intercourse • 1990 Misdemeanor drug possession • 1986 DUI

45. To Suspend or Not to Suspend • Suspend imposition of sentence • Most common • Simple – no term to calculate • Flexible if VOP • Suspend execution of sentence • Sends “message” • Least flexible • Must do full calculation of sentence

46. Conditions of Probation • Set length • Terms of probation • Reasonably related – “nexus” • Defendant must accept conditions of probation

47. Case No. 4 • Crime: P.C. § 487 – grand theft • Facts: • Defendant, 37, stole $1,000 from McDonalds • When arrested at home, was drunk after drinking beer • Held no job longer than nine months • Indication of drug problem • Has 6-month-old child

48. Case No. 5 • Crime: P.C. § 368 – elder abuse • Facts: • Defendant 27; victim 75 – grandmother of def • Defendant, prior to date, locked victim in room • Defendant struck victim in face • Victim is demanding and difficult

49. Deny Probation • If not eligible under any circumstances • State disqualifying statute • If eligible only in unusual circumstances • State defendant has not met burden • If presumptively eligible • State reasons for denial • If stipulated sentence • No reasons need be given • State fact of stipulation

50. Two Sentencing Systems • Determinate Sentencing Law (DSL) • Every crime has triad: lower, middle and upper term • Indeterminate Sentencing Law (ISL) • The sentence is for “life,” with or without a minimum term