Back in the 1970s and1980s, there was widespread belief that people who were charged with essentially the same sort of criminal conduct were getting wildly different sentences depending upon factors which the general public deemed to consider irrelevant and unjust. The man who stole a car in Texas might be sentenced to 10 years in prison, while the man who stole a car in Massachusetts might be ordered to do community service and write a letter of apology. More troubling was the wide-spread belief that men, and particularly Black and Latino men, received harsher sentences than White and female defendants.
So the politicians and activists came together and developed the Sentencing Reform Act of 1981 (SRA). This bipartisan piece of legislation was primarily based upon the idea that the problem with sentencing in the criminal justice system is that judges have too much discretion. The SRA sought to change that by mandating that judges impose sentences that fell within select ranges depending on the severity of the crime charged and the defendant’s prior criminal history. There were two main problems with the SRA from a policy point of view.
First, while the SRA has dramatically curbed the Bench’s ability to exercise discretion in sentencing, for all practical purposes it has done little to muzzle prosecutors with regard to charging.
Second, the SRA was largely drafted during the “get tough on crime” era of Ronald Reagan. While many on the Left had hoped that the SRA’s move to standardize sentences would eliminate racial and gender disparities in the criminal justice system, the reality is that what it has mostly done is increase the average prison sentence the average criminal defendant can expect to serve.
How does the Sentencing Reform Act work?
SRA scoring can be confusing and contentious. The SRA primarily concerns itself with felonies, although past misdemeanor convictions can affect SRA scoring with regard to select offenses. The SRA ranks felonies in serious level from Aggravated Murder 1 to Violating Commercial Fishing. In between are 16 different levels of seriousness for crimes.
The first step in calculating an SRA score is locating how serious the crime is. Next, you calculate the defendant’s prior criminal history. Prior felony convictions affect your offender score and that in turn affects the minimum and maximum amount of time a convicted offender will have to serve. Depending on the nature of the crime, some priors can count for triple points, while others may only count for half-a-point. Scoring is often offense specific. Naturally, it makes no sense to factor ancient convictions into a defendant’s offender score so after a select period of time certain offenses “wash” from the offender score, thereby decreasing the amount of time the convicted will have to serve. Class A and all felony sex crimes never wash from the calculus of offender scoring but Class B convictions wash after 10 years of law abiding behavior, and Class C felonies wash after 5. The problem most defendants face however is that their past convictions never wash because the SRA’s definition of “law abiding behavior” is so broad that simple misdemeanor convictions like driving with a suspended license restart the washout period. Furthermore, the clock for washout provisions only begins to tick from the moment of conviction or release from confinement, whatever is later. And a subsequent conviction, even a minor one like driving with a suspended license, restarts the clock.
Is it possible to get a sentence outside my offender score?
Yes, but it’s rare. The prosecutor can seek what’s called an exceptional sentence for a sentence beyond what your sentence range demands, and your attorney can seek what’s called an “exceptional down” for a sentence that is lower than the minimum set by the SRA. Additionally, the SRA provides for First Time Offender waivers which allow Judges to sentence defendants from 0-90 days confinement for most felonies when the defendant has no prior felony history. Also, it is not uncommon for defendants facing serious time to try to reduce their sentence by seeking a DOSA, SOSA, Drug Court or Mental Health Court program.
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