When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of “what’s going to happen to me?” In this article we’ll take a step back, and instead of trying to answer the question “what’s going to happen,” we’ll examine why whatever does happen, in fact happens. In other words, we’ll try to find out why a particular Sentence is handed down in a Criminal case.
Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.
This is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they’re “hitting their stride.” This is also why you’ll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.
Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here’s where anyone who has ever had a prior Criminal case will instinctively understand what I’m about to say, while everyone else will simply have to believe the logic of it:
What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court’s Probation Department.
This bears some explanation.
In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court’s Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.
In reality, this has grown to mean that pretty much every Judge, in pretty much every case, follows the Recommendation to the letter. It means that you will almost never find a case where the Judge has deviated, in any significant way, from what his or her own Probation Department has Recommended. In fact, if there’s one standing criticism I have of some Judges, it’s that they “rubber stamp” everything that crosses their desk, and fail to rise to the level of actually judging and being the final and ultimate decision-maker.
This wasn’t always the case. Even though the PSI Recommendation has always been a very good predictor of what the Sentence will be in any case, there used to be more Judges who truly (and correctly, in my view) believed that they were the Judge, and thought of the Sentencing Recommendation as but one resource available to them in figuring out what should be done.
Things have changed in the last 20 years, and that breed of Judge is almost extinct. The newer generation of Judges has far less experience in deciding, from the Bench, what to Order as a Sentence in a Criminal case. Of course, in Felony cases or DUI cases, the Judge must send the Defendant to be screened by the Probation Department before he or she can pass Sentence, but this newer breed of Judges sends everyone to Probation for a PSI, whereas their older counterparts would skip this extra step and figure out what to do right then and there, in the Courtroom.
Today, this newer generation of Judges tends to follow the Recommendation made in the PSI Report more than ever. This means, then, that it is more important than ever to be proactive and have an active role in influencing that Recommendation.
We can think of it like this: If the Judge is going to follow the Sentencing Recommendation, if not to the very letter, then darn close to it, then it is imperative to procure a favorable (meaning lenient) Recommendation in the first place. It does little good to let that process take its own course, then show up on the day of Sentencing and argue to the Judge why he or she shouldn’t follow the Recommendation we already know they are inclined to. In fact, from my perspective, that’s a textbook example of “too little, too late.”
I don’t think I had been a Lawyer very long when I began to realize this. It has always been the Law, since before I was Licensed, that in a DUI case, for example, a person is required, before they could be Sentenced, to undergo a PSI. In a DUI case, that means that in addition to an interview, the person would take a mandatory alcohol assessment test. This test is scored, and that score, more than anything else, determines what kind of Sentence they’ll get. The point of the alcohol assessment test is to determine if a person has an alcohol problem, and if so, how severe it is, or, if not, whether they have the potential for one to develop. Once that test is scored, a certain range of classes and/or counseling is indicated, and in turn, Recommended.
This is somewhat mechanical in effect. If a person takes the MAST Test (Michigan Alcoholism Screening Test) in a DUI and they score 6 points, they are deemed to be a problem drinker. Classes and counseling will be mandated in such a case. On the other hand, if the person scores 2 points (the lowest a person in a DUI situation can score, and a score that is very possible if the person has been properly prepared to take the test), then they are found to be non-alcoholic, and no classes or counseling is required (although in certain Courts, a person can count on some kind of education no matter how low they score).
More importantly, once that test is scored, it is WAY too late to have any real impact on the outcome of the case. In other words, if a person is determined to have an alcohol problem, or the potential to develop an alcohol problem, they will be Ordered into classes. It doesn’t matter who their Lawyer is, or what they Lawyer says to the Judge at Sentencing. The Judge will follow that part of the Sentencing Recommendation calling for alcohol education no matter what.
However, if a person could have been warned of some pitfalls and “bad” answers to avoid in the alcohol assessment test, and could therefore have avoided scoring in a way that shows them to be at risk to develop an alcohol problem, then they could have likewise avoided any such classes in the first place, at least in those Courts (and they are the majority) that don’t send everyone to some kind of class.
And this holds true in many other aspects of the Pre-Sentence Investigation process.
There are significant differences between Court and Counties in terms of the kinds of Recommendations made in similar cases. For example, many Oakland County Courts will hand down an 18-month Reporting Probationary term in a 1st Offense DUI. That same charge will often result in a 1-year, Non-Reporting term of Probation in Macomb or Wayne Counties. Whether this disparity is the result of a Judicial difference amongst the Counties, or reflects a difference in the approaches of the various Probation Departments is kind of a chicken versus the egg conundrum. In the end, however, what matters is that this disparity exists.
Thus, while it is not only possible, but also important to have a proactive impact on the Sentencing Recommendation in any given case, it must be remembered that where the case is pending provides a general outline, or framework, for how things will ultimately play out. It has always been the case that Oakland County is just “tougher” in any Criminal case than Macomb or Wayne Counties.
There are certain generalities about Probation Departments, and Probation Officers, that are helpful to keep in mind as a person prepares for a PSI. And if there’s any point to this article, it’s that preparing for, or, more particularly, being properly prepared for a PSI is the single biggest factor in producing a better Sentence.
In my Office, I meet with a Client before their PSI in any case, and usually for at least an hour to an hour and a half. I learned long ago, and revisit the lesson almost daily, that in order to produce a good result in a Criminal case, a person must be thoroughly prepared to undergo the whole PSI process. While I’m not going to give away my “secret recipe” here (and given that it takes at least an hour, in person, to over this stuff, it would take more pages than I’d ever care to write anyway), there are a few general points that illustrate some of the “I never thought about that” aspects of the PSI process.
In part 2 of this article, we’ll pick up by going over some of those generalities about the PSI process, and look at some specific examples of how that plays out, using a DUI case as our example.