As we discussed in the first part of this post earlier this week, prosecutors have increased leverage in determining the potential sentence of a criminal suspect due to mandatory sentencing guidelines. This can result in a dramatic difference between the sentence offered as part of a plea, and the potential sentence if a suspect decides to go to trial. The risk involved in a trial can put a suspects in a position in which they feel that they have little choice but to accept a plea agreement. In situations like this, it is important to consult with knowledgeable and experienced counsel so that a decision can be made based on the specific circumstances of your case rather than fear created by the prosecutor.

Prior to mandatory sentencing laws, judges had increased discretion in determining the appropriate sentence for a crime if a suspect is found guilty. It is for this reason that judicial impartiality has always been viewed as a linchpin of our justice system. It is important that the person who has the power to exercise this discretion is unbiased. But with mandatory sentencing, this power has shifted from the judge to the prosecutor. If the sentence is mandatory, the length of the sentence is not determined as much by the judge as by the prosecutor’s choice as to what charges to pursue.

In one case, highlighted in a recent New York Times article, a father fired a gun into a living room wall in his own house. The father said that his daughter’s boyfriend was a dangerous drug dealer who had threatened his family. The father said he was not trying to hurt the boyfriend but was simply trying to get him out of his house.

The prosecutor initially offered a plea agreement of five years of felony probation. The father, feeling that he was in the right, turned this down. The prosecutor was able to secure a conviction for aggravated assault. Because the firearm was fired, a mandatory sentence of 20 years was applied. The judge explained that he was “duty bound” to impose this sentence, but that if it were not for the mandatory sentencing, he would have imposed a different sentence.

There may be times when a plea agreement offers the best possible outcome in a criminal case. On the other hand, criminal suspects have a right to defend themselves in a trial. The scare tactics employed by prosecutors seem to impose a significant obstacle to the exercise of this right. It is important to consult with an attorney who has the skill and experience to ensure that all of your rights are protected.

Source: New York Times, “Sentencing Shift Gives New Leverage to Prosecutors,” Richard Oppel Jr., Sept. 25, 2011