If a person is convicted of a felony, the sentencing guidelines are often the most important aspect of how much time that person will receive. These are some insights into how they are calculated.
What are the sentencing guidelines?
The sentencing guidelines are in theory a recommendation to the sentencing judge as to what an appropriate sentence would be. The general idea is that the guidelines promote consistency in statewide sentencing so that people charged with similar crimes who have similar records receive similar punishments whether they live in Roanoke, Richmond, or Virginia Beach. Almost every felony offense (about 95%) is covered by the sentencing guidelines . The sentencing guidelines are produced by taking a number of factors into consideration. By far the two most important factors are: 1. prior record and 2. the current crime charged. People charged with violent offenses and those with lousy prior records tend to have guidelines that are much higher.
Do judges have to follow the sentencing guidelines?
While judges have the authority to ignore the guidelines, they rarely do. Judges are required to give written explanations anytime they depart from the guidelines. The result is that state sentencing guidelines very well could be the most important aspect of how much time someone convicted of a felony ends up serving. In 2016, 90.2% of felony sentences statewide in Virginia were within or above the guidelines recommendation. In Virginia Beach, 93.2% of felony sentences were within or above the guidelines recommendation. In other words, if you're convicted of a felony, your chances of being sentenced below the sentencing guidelines recommendation is slim.
Is there anything that can be done to lower the sentencing guidelines?
Sometimes. That's why it's extremely important to have an attorney experienced with the nuances of guidelines. For example, let's say you're charged with robbery for which the guidelines are typically terrible. A reduction in charges from robbery to grand larceny can mean the difference between years in prison and months or less in prison. To give another example, let's say you're charged with Possession with Intent to Distribute a Schedule I or II Substance. Even with no prior record, the guidelines will start at a minimum of 7 months. Getting the charged reduced to simple possession can reduce to the guidelines to a recommendation of no jail time with probation. Those are only two very obvious examples. There are literally thousands of examples where having an attorney experienced with "massaging" the guidelines can be the only things preventing you from serving months if not years in prison that you didn't have to serve.
Who calculates the guidelines?
Sometimes it's the prosecutor and defense attorney working together and coming to an agreement. Sometimes it's the probation officer preparing the pre-sentence report. Regardless of who is preparing the guidelines, you need an attorney who knows exactly how guidelines work. I've had too many cases to count where the guidelines prepared by prosecutors or probation contained errors that hurt my client. If you're charged with a felony, you should absolutely talk to any prospective attorney about sentencing guidelines. If he/she can't have a highly educated conversation about state sentencing guidelines, you should run out of the office.
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