What Is a Sentence Departure?

Courts established sentencing guidelines for two main reasons: to provide more consistent criminal sentencing and to provide sentences that fit the crime. Before sentencing guidelines, judges had more discretion in handing down their sentences, leading to unequal prison sentences for people convicted of similar crimes and long sentences for non-violent and low-level offenders.

Federal sentencing guidelines were put into place in 1987. States also have a wide variety of guidelines. Some have similar sentencing guidelines and commissions that review the guidelines. In many cases, judges have room to depart from the guidelines.

There should be a good reason for a judge to go outside of the sentencing guidelines. You may be able to file an appeal or motion to be resentenced if the judge in your case departed from the sentencing guidelines. Contact an experienced criminal defense attorney for help.

Criminal Sentence After Conviction

Sentencing occurs after a conviction or a guilty or no contest plea. In most cases, the jury is not part of the sentencing, and sentencing is left up to the judge. Sentencing may include:

• Jail or prison
• Fines
• Restitution
• Probation
• Substance abuse counseling
• Drug testing
• Ignition interlock device (IID)
• Ankle monitoring
• Community service
• Education programs
• House arrest

Federal and State Sentencing Guidelines

Sentencing guidelines usually involve a points system or grid. The penalties in guidelines are based on the severity of offense, along with other factors, like your criminal record. You may be issued a criminal history score, based on the number of prior convictions and duration of sentencing. The combination of offense type and criminal history score provides a presumptive sentence and discretionary range. Guidelines may also recommend probation instead of a jail sentence.

A sentence departure involves a judge going beyond or below the sentencing guidelines. This is true even if the crime has minimum and maximum sentences set by law.

For example, if a state’s sentencing laws — based on a defendant’s criminal history and offense — set a two-year maximum prison term for a second-offense shoplifting charge, a judge handing out a five-year sentence would be issuing a sentence departure. If the sentencing laws had a minimum prison term of five years for robbery, it would be a sentence departure if a judge sentenced a robber to 60 days in jail.

Types of Sentence Departures

There are two types of departures: dispositional departures and durational departures. In a dispositional departure, the judge issues a sentence different than that of the guideline. For example, a judge might sentence you to home detention instead of prison. In a durational departure, the judge will set a sentence longer than or shorter than the sentence lengths in the guideline range.

When Can a Sentence Departure Happen?

Judges typically have some discretion within the sentencing guidelines to issue penalties toward the minimum or the maximum, but usually stay within the guidelines. If there is a sentence departure, the judge may need to put their reasons into the record or file a report with the sentencing guidelines commissions identifying the reason for the point of departure. Reasons include mitigating factors or aggravating factors unique to your case.

Some states, like Minnesota and North Carolina, have mandatory sentence departure reporting requirements. Other states have voluntary reporting for judges or do not enforce the guidelines when a judge departs from advisory sentencing.

For example, in Minnesota, the sentencing court must complete a departure report form within 15 days when the court issues a sentence departure. The court has to provide a reason for departure, which could include factors like:

• The offender played a minor role in committing the crime
• The victim was treated with particular cruelty
• There were multiple victims or multiple incidents per victim
• The defendant lacked substantial capacity for judgment
• The defendant has shown remorse or accepts responsibility

Federal Guideline Variances

For federal sentencing, the sentencing table is based on the offense level and criminal history category. The offense level is divided into 43 levels, with level 1 being lower severity and level 43 as the most serious offenses. The criminal history category has six categories from I to VI based on criminal history points, with Category VI including 13 or more points.

The penalty range for a maximum offense level is a minimum of life in prison. The penalty range for the minimum offense level has a maximum of six months in federal prison. The criminal history category is based on points added up based on prior criminal convictions and sentencing, including:

• Prior time spent in prison
• Prior sentences of less than 60 days
• Offense was committed while on probation, parole, or supervised release
• Prior conviction for a violent crime

Within the grid guidelines, the U.S. Sentencing Commission allows for upward departures or downward departures, based on the individual situation. Factors to be considered in imposing a sentence that differs from the guidelines may include:

• The nature of the offense
• The sentence reflects the seriousness of the offense
• The sentence provides a deterrent to future crimes
• There is a need to protect the public
• The type of victim involved

Get Someone To Advocate for You

Sentence departures are a big deal. Petitioning for and receiving a prison sentence that departs from the standard sentencing guidelines requires someone who is familiar with the system, knows the law, and is good at advocating. You should contact an experienced criminal defense lawyer if you think your case warrants a departure from sentencing guidelines. They will know the best path to take.