Tuesday, January 30, 2007

PUNISHMENT: Where do they get that number from?

The Colton Pitonyak trial has passed. The jury assessed 55 years for his actions. While the circumstances of that trial will never disappear for the family and friends of the victim, is the result that which one would call "justice"? I have found there is no easy answer for why a number seems appropriate.

A few years ago, a jury assessed a 15 year sentence on my poor black male client for shooting one of his best friends (another black male) to death. They convicted him of murder, yet gave him a sentence in the manslaughter range.

Recently, a jury assessed a 30 year sentence on my middle class white female client for shooting her husband a total of 4 times. The jury concluded that she shot him twice and then waited for up to a minute to shoot him two more times. Why the difference in punishment for these same crimes?

Should the status of the victim make a difference? Should the gender of the convicted impact the punishment? Is class and race a factor to be considered? Should it matter whether the deceased was a good person or a bastard? Consider this scenario: Should an honor student who beats a homeless person to death any less culpable than the homeless person who beats an honor student to death? Often the homeless person would receive a stiffer sentence based on extensive testimony on behalf of the more affluent victim. But, is the act of the beating and the intent involved any different between the perpetrators? Obviously not, but does it make sense that one should receive more time than the other with all other factors being equal except for their position in life?

Maybe juries are more methodical and deep thinking than I think. Do juries take into consideration the convicted one's age, parole eligibility, the crowded state of our prisons, or the cost of incarceration? Maybe, but should they? Lawyers strive to distinguish between the reckless, accidental, or premeditated killing because the state of mind is different in each of these. However, why do crimes where the state of mind is identical and the resulting crime equally heinous, extract vastly different penalties from court to court or county to county?

Consider this possible starting point: Sentencing guidelines for Murder. How about 5 years for formation of the intent; 10-25 years for the method (some may argue that killing a victim by torturious means deserves more time and that some distinctions should be made i.e. the number of shots or a multiple stabbing); 10 years for each dependent of the victim; 5 years for each immediate family member of the deceased; 10 years if another felony was proven such as Robbery or Sexual Assault; 15 years for any of the other Capital factors in today's Penal Code (killing of an Officer, elderly, child, etc.); and/or 0-15 years for actions after the crime (calling 911 versus flight). Some may argue for some mitigating factors such as a reduction of the sentence for certain mental illnesses or genetic defects. Of course, there can be more or less factors. There could be a cap on the years or merely call it a life sentence after a certain point. Probation would still be an option in some special circumstances. The numbers are debatable. I think you get the idea.

And what about the effect on plea bargaining. Wouldn't it be easier for a client to assess the risk of going to trial if he knew a range other than 5-99 like say, 10-35, or 30-55? Prosecutors would be able to offer a resolution in the same manner as they do now under the habitual statute, somewhat less than the potential sentence but fair.

Would Pitonyak have received more or less time under a scheme like this? We'll never know. Would my past clients have received more time under this scheme? Gosh, I hope not. Putting an exact number on the cost of human life takes away from the jury the very discretion that lawyers like myself fight for in the name of our clients. We argue that some need a second chance or are "salvageable". But don't they do that already in the Worker's Compensation area, putting a value on a death on the job or a value for a lost finger?

Of course none of this discussion would affect the ability to vigorously defend our clients in the guilt/innocence stage of the trial and a resulting not guilty verdict. But under a punishment sentencing scheme, at least "justice" will have a notion of some consistency and not merely depend in what county you are prosecuted or what side of the tracks you happen to reside.

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