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Sentencing Guidelines Part 2: The Secret Of The Ooze

As we’ve discussed many times on our blog and podcast, jury sentencing sucks many butts. Thus we’re excited that effective July 1, future butts will be spared as jury sentencing goes the way of the dodo and Armie Hammer’s career. Ba Dum Tsshh. For real though, huge props to the General Assembly for taking us out of the dark ages where exercising the right to a jury trial meant worrying about a jury “recommendation” of life plus cancer if you lost. From here on out:

But this post isn’t actually about jury sentencing. It’s about a massive change to sentencing guidelines that could have a mitigating effect on defendants now requesting tons of jury trials. Effective July 1, 2021, if a judge determines at sentencing that the defendant provided substantial assistance, accepted responsibility or expressed remorse, the low end of the guidelines recommended range will be adjusted. If the calculated low end of guidelines range is three years or less, the low end of the guidelines range will be reduced to zero. If the calculated low end of the guidelines range is more than three years, the low end of the guidelines range will be reduced by 50%. The midpoint and the high end of the Sentencing Guidelines range will remain unchanged.

I hadn’t even heard of this until a few weeks ago. This is what I looked like when I read about it.

This is a sea change to sentencing guidelines. If judges accept that pleading guilty = accepting responsibility, the low end of the sentencing guidelines in the majority of felony cases is going to be zero. In the remaining more serious cases, the low end gets chopped in half. In the immortal words of Keanu, whoa.

What does this all mean for us schmucks schlepping it in the criminal courts everyday? Plea negotiations are usually based on sentencing guidelines, and a typical plea offer might go something like this:

Prosecutor: The guidelines are 1 year 6 months to 3 years 8 months. I’ll offer the 1 years 6 months if your client pleads guilty.

If the prosecutor has the goods to convict your client, that’s probably not a bad deal. But is it still a good offer when the adjusted low end of the sentencing guidelines will now be zero?

My takeaways are that:

  • Prosecutors are still going to use guidelines as the basis for plea offers, but we’re going to see way more plea agreements with caps.

  • Judges just got hella more discretion to sentence lightly without catching the wrath of the General Assembly. So who you get as your sentencing judge just got even more important.

  • Some judges are going to use this newfound discretion often. Some won't. There is going to be an increase in complaints that similarly situated defendants are getting drastically different results.

P.S. On an unrelated note, W&K wishes a happy 30th birthday to Teenage Mutant Ninja Turtles 2: The Secret Of The Ooze. Our sincerest thanks goes to the creative minds who brought us Vanilla Ice performing as himself in an epic ninja rap gang battle featuring a belching werewolf, breakdance karate, and turtles wailing on keytars. God bless America.


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