Criminal Law

What Is a Sentence Departure?

Sentencing guidelines were established to help provide more consistent criminal sentencing that is proportionate to the crime. Without sentencing guidelines, judges would have a lot of discretion in handing down a sentence, which could potentially include long minimum prison sentences even for non-violent and low-level offenses. Guidelines help ensure defendants who are convicted for similar crimes receive similar sentences.

Federal sentencing guidelines were put into place in 1987. However, states have a wide variety of guideline systems. Some states have similar sentencing guidelines and sentencing commissions that regularly review and enforce the guideline systems. Some states have sentencing commissions that do not have much authority to enforce the guidelines. Other states have no sentencing commissions to oversee how judges treat the guidelines.

There should be a good reason for a judge to go outside of the sentencing guidelines. Unfortunately, some judges may not be completely objective - and some can just be plain wrong about the sentence. 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 lawyer for help.

Criminal Sentence After Conviction

Sentencing occurs after the defendant is convicted. A defendant can be convicted based on pleading guilty, pleading no contest, or a being found guilty in a jury trial verdict. 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 previous convictions. The convicted individual 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 have a presumption for probation instead of a jail sentence.

Sentence Departure

A sentence departure involves a judge going beyond or below the sentencing guidelines. This is true even if the crime has a statutory minimum and maximum sentence. For example, if the state's sentencing laws - based on the defendant's criminal history and offense - provided for a 2-year maximum prison term for a second-offense shoplifting charge, a judge sentencing the shoplifter to 5 years in prison would be issuing a sentence departure. This is true even if state law allowed for a maximum 5-year prison sentence. If the sentencing laws had a minimum prison term of 5 years for robbery, it would be a sentence departure if a judge sentenced a robber to 60 days in jail.

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.

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 when the court pronounces a sentence departure from the presumptive sentence within 15 days after filing. 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 Offense Level and Criminal History Category. The Offense Level is divided up into 43 levels, with Level 1 being lower severity and Level 43 as the highest level of offense. The Criminal History Category has 6 categories from I to VI based on criminal history points, with Category VI including 13 or more points.

The offense level is based on the perceived severity of the crime. The penalty range for maximum offense level is a minimum of life in prison. The penalty range for the minimum offense level has a maximum of 6 months imprisonment. The criminal history category is based on points added up based on prior criminal convictions and sentencing, including:

  • Prior sentencing of imprisonment
  • Prior sentences of less than 60 days
  • Offense was committed while on probation, parole, or supervised release
  • Prior conviction of a crime of violence

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