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Sentencing: Deciding what's fair

| May 25, 2021 1:00 AM

To those close to the victim, Monday’s sentence for convicted, high-profile murderer Lori Isenberg may not seem harsh enough. Yet had it happened elsewhere, she might have been punished less.

What is just, fair, or realistic is a precarious balancing act in any court of law. Why do some defendants get longer or shorter sentences for “the same crimes?” Why do some punishments for lesser crimes seem more severe?

Laws, like the people they protect and judge, are complicated. Rarely if ever are two humans, crimes, or circumstances the same. So the law requires sentencing judges to weigh a list of factors before deciding a defendant’s fate.

That process starts with statutes dictating minimum and maximum potential imprisonment, fines and other possibilities such as probation or registration, according to the type of crime. Within that range, however, judges have latitude.

Sentencing factors. After the guilt phase of a criminal trial, a separate hearing occurs where both sides present evidence and arguments for the judge to consider in sentencing (even if the prosecution and defense made a sentencing deal, the judge might not agree to it).

Those factors include the defendant’s prior record, education, employment and family situation, physical and mental health, and community ties.

The circumstances of the particular crime, mitigating (reducing blame) and aggravating (increasing blame or severity) factors, and harm to any victim and their family are also considered, as well as the potential for restitution, defendant’s attitude, and alternatives such as substance abuse treatment where applicable.

Sentencing factors often involve private information about people involved in the case. If an official presentence investigation report is prepared, it’s not public information. That means only the judge and perhaps the parties know fully what’s behind a sentencing decision.

While judicial discretion is fairly broad, guidelines in Idaho Code section 19-2521 provide, “Each discretionary sentence should be specifically tailored to the individual defendant and take into account the totality of all relevant facts and circumstances” and lists factors such as:

· The seriousness of the crime

· Societal protection, appropriateness of rehabilitation, and deterrence (to both defendant and community in general)

· Whether the defendant actually meant harm and their conduct caused or threatened it

· Whether treatment would be beneficial

· Whether there were substantial grounds tending to excuse or justify the criminal conduct, even if insufficient to avoid conviction.

· The victim’s part in the crime or inducement, if any

· Likelihood of reoffending, considering criminal history, unique circumstances of the crime, character and attitude, etc.

Concurrent vs. consecutive. If a defendant is convicted of more than one crime (one set of events can meet several crime definitions), they may receive multiple sentences which are “concurrent” or “consecutive.” Concurrent means running at the same time, so say if crime one results in a two-year sentence, and crime two gets a five-year sentence, the most the defendant will serve is five years.

Consecutive sentences are "stacked," so the same defendant would serve up to seven years. Whether a sentence is concurrent or consecutive may be set by statute, or be at the judge's discretion.

Withheld judgment. For less serious crimes, sentencing possibilities sometimes include withheld judgment (i.e., probation terms when fully met result in charges being dismissed) and suspended sentence (essentially probation, with or without incarceration) — two options for reducing jail overcrowding when public safety isn’t a concern. An Idaho teen caught with a cigarette, for example, technically faces prison time as it’s a controlled substance, but may instead receive a withheld judgment.

A 2020 brief by the nonprofit, nonpartisan Idaho Center for Fiscal Policy in Boise evaluated the state’s increasing problem of prison overcrowding. Idaho’s prison spending increased by more than 200 percent in 25 years, among the nation’s highest rates. Idaho incarcerates people at higher rates than previous generations and has outpaced other states in growth in prison spending.

While some taxpayers may feel safer with more people jailed, it has also left the state with practical and budget challenges.

Facing similar problems, in 2013 Utah legislators enacted policy reforms, converting first and second convictions for drug possession from felonies to misdemeanors with shorter sentences, and reduced sentencing guidelines for other low-level criminal offenses.

In Idaho, felony drug possession covers all controlled substances, with sentence lengths and fines based on the type of substance, including sentences up to life in prison for possession of narcotics.

Sentencing and criminal justice are far too weighty and complex to fully address in a newspaper column by this non-expert. For the ICFP report see Bit.ly/2QKoFgo. For more Idaho Department of Correction data, see the publications link at Idoc.idaho.gov.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email Sholeh@cdapress.com.