As a Seattle criminal defense attorney, I represent people charged with crimes. Although there are defendants in both criminal and civil lawsuits, the two types of proceedings play out very differently. The biggest difference between someone charged with a crime or defending a civil lawsuit is the penalty. In a civil case, generally, a defendant is facing the possibility of losing money. In criminal cases, the defendant’s liberty is at stake. Criminal defendants are risking jail time if they lose their case. But how much jail time? Those potential sentences vary dramatically.
I’ve written before about how convictions affect employment, the ability to travel, and more. But those are collateral consequences. The direct consequence of a criminal conviction is often time spent in custody in a jail or prison.
Defendants want to know how much time they might be facing. When a defendant is deciding whether to take a plea or go to trial, one part of the decision is the likelihood of prevailing in front of a jury. The other part is determining what the consequences are if you don’t prevail. The only way to make an informed decision about such an important matter is to have all of the information.
For misdemeanors or gross misdemeanors the potential sentence is fairly straightforward. The maximum potential custody for a misdemeanor is 90 days in jail. For a gross misdemeanor, it’s 364 days.
For felonies, the most serious crimes, potential custody gets more complicated. How complicated? In Washington, to figure out how much time a defendant charged with a felony is facing we must first go to
If it’s been a while since you’ve seen a pile of numbers, definitely click on that link.
But it’s not as complex as it looks. (In fact, I think the design is needlessly complicated). The columns refer to the seriousness level of the crime. The rankings range from one to 16 but there are actually felonies that are “unranked.” A felony is unranked when it’s so rarely charged that the legislature hasn’t gotten around to assigning a seriousness level to it.
To determine the seriousness level of most felonies, we can refer to another table. For example, according to the table second Degree Rape of a Child has a seriousness level of 11 and First Degree Perjury has a seriousness level of five. The legislature determines these levels so if you disagree with a classification, contact your local representative.
The rows refer to the Offender Score, which usually are points received from past criminal history. In other words, someone with a significant prior history will receive a higher sentence than someone with no prior criminal history. The method for calculating an Offender Score can be found starting at subsection 7. Calculating points for prior offenses can be very complicated. Convictions for out-of-state and Federal offenses don’t always fit into the categories described in the statute. It’s a big issue because, as the table shows, a sentence can vary by years depending on a defendant’s offender score.
So going back to the sentencing grid, when we calculate the seriousness of the crime plus offender score, we actually get a sentencing range. This range is called the standard range, and it gives the sentencing judge discretion to sentence someone on the higher end or lower end, based on intangibles like remorse or family history or whatever.
A judge does have the capability to sentence someone above or below the standard range. This is called an exceptional sentence (exceptional up or exceptional down) and they’re relatively rare. The reason they’re rare is because the factors a court can consider are created by statute, and there are not many of them. Furthermore, if a Court does issue an exceptional sentence they need to do some special paperwork to prove to an appellate court their deviation was supported by the facts. So, although it’s good to be aware of exceptional sentences, the majority of felony sentences fall within the standard range on the grid.
Concurrent and Consecutive Sentences
Sometimes a defendant will commit multiple crimes in the same affair. For example, a person could break into a house, steal some stuff, and also set fire to the house. That’s a residential burglary plus theft plus arson. How is that sentence calculated?
There are two questions there. The first is how simultaneous offenses are calculated for an offender score. The second is whether the sentences for those three crimes are served consecutively or concurrently. Consecutive sentences are those that are served one at a time. A concurrent sentence is one that’s served as the same time as the other ones. So if someone was sentenced for two crimes, and each sentence was 12 months long, a consecutive sentence means the total confinement would be 24 months, and a concurrent sentence means the total confinement would be 12 months. In Washington there’s a presumption that sentences will be concurrent. But simultaneous crimes muddy the waters a little.
Here’s how it shakes out: an offender score is calculated by treating the less serious crimes as if they were priors for calculating the sentence of the more serious crime. So if someone had no criminal history, but committed two felonies, the less serious felony would be counted as a prior offense when calculating the sentence of the more serious felony. But, the sentence for both charges would be a concurrent sentence.
Here’s an example. Someone is found guilty of two counts of Child Molestation 3. We can see on the seriousness level table that’s an offense with a level of five. We can also see that for this crime, a defendant receives one point for every prior felony conviction, and the two convictions count as priors to each other. So going back to the sentencing grid a seriousness level of five, with one point, yields a presumptive sentence range of 12-14 months. The person would be sentenced twice to 12-14 months, but those sentences would run concurrently, i.e. be served at the same time.
Enhancements and Alternatives
But wait! Certain crimes, or certain actions while committing crimes, yield aggravating factors, also called sentencing enhancements. These enhancements are added on to the end of every sentence, and by statute, are to be served consecutively to the base sentence. There are quite a number of them, like being armed with a firearm, or committing the crime while already in prison, committing the crime for sexual motivation, or engaging in a high-speed chase with the cops. Many more are listed here. So, if you’re going to commit a felony, try not to do extra bad…stuff?
On the flip side, there are also sentencing alternatives. Certain drug crimes, sex crimes, and first-time felonies all have potential sentencing alternatives or waivers. Qualifying for these can save a person from a lot of incarceration, and often get them some needed treatment. They’re important and worth their own post in the future.
This gets at the basics of felony sentencing, but it truly is a complicated topic. Drug offenses have their own sentencing grid. Certain sex offenses have “indeterminate sentences” that can force a defendant to be in custody longer than their sentence. Washington has a “three-strikes” law that can put a persistent offender in prison for life. And, let’s not get started on capital punishment. But if the subject of felony sentencing interests you, the entire sentencing manual can be found here in a breezy 416 pages. Did I mention yet that this is a complicated subject?
Putting It All Together
It can be difficult to talk about sentencing with my clients, but everyone deserves to know exactly what they’re facing when the government accuses them of committing a crime. Being able to identify possible sentences, as well as alternatives, allows a client to decide how to proceed. If you or someone you know needs a felony criminal defense attorney, be sure to give me a call.
It’s been a fantastic 2013. We moved offices, the firm had its best year ever, and my wife and I found out we’re expecting our littlest associate!
I am very much looking forward to 2014. I have some fun projects in the works and a lot of interesting, active cases right now. I like what happened in 2013, but I feel next year is really going to be another level. I hope my readers are as excited by the promise of 2014 as I am.
Finally, for this New Year’s Eve, please please please remember to not drink and drive. Yes you could hire a Seattle DUI Attorney and have a good chance of obtaining a good result. But hiring me is a lot more expensive than getting a taxi. If you’ve had too much to drink, get a cab. If you’re not sure you’ve had too much to drink, get a cab. If your friend has had too much, get them a cab too. Stay out of the hospital, stay out of jail, and have a safe and prosperous 2014.
Last night my wife and I came back from a party in downtown Seattle to see our car’s window smashed and a would-be thief inside the car, rummaging through its contents. We called 911 and he ran off. He was quickly arrested.
That’s an active case now, so I’m not going to talk much about it until things resolve. If I’m called as a witness for a trial, I’ll share that experience. Instead, today I wanted to write about the reactions from people when I told them we had been victims of a vehicle prowl.
A few jokesters asked if I would be representing the defendant. Well, no. Ethics rules prevent me from being both lawyer and witness in a case. And since I would want the defendant to be found guilty I would have a very fundamental conflict of interest (Comment 1) in also criminally defending him.
I have a police officer friend who I told about all this. I told him Seattle Police were perfectly professional with the whole experience. He seemed gratified to hear that and then half-jokingly asked how I, with my job, could have someone arrested. I, half-jokingly, asked with his job how he could allow the crime to happen in the first place.
But my friend, joking or not, did inspire me to reflect on what I do for a living and what I really hope to accomplish.
I have never considered my job to be keeping criminals free. Sometimes that happens, but my ultimate purpose is simply to be the foil against the government.
What does that mean? It means when a governmental agent accuses a citizen of some heinous action, I am there to test the government’s evidence and procedure every step of the way. My job is to make their job very difficult. I do this so we can all be sure that only people who have actually done what they’re accused of doing are punished.
Does this mean sometimes guilty people “get away with it?” Sure, because the system falls apart if only innocent people get a zealous defense. But if the police do everything right, and the prosecutors do everything right, and the person actually did commit the act they are accused of, you can expect consequences will follow.
Now I’ll be honest: on a personal level I really hate losing. My clients know I pour myself into their cases, guilty or innocent. And when you pour yourself into something and you still end up with a loss, it stings. If I suffer a tough loss in court I’ll usually take a little time to get re-centered.
That being said, what really can keep me up at night is when a truly innocent person is found guilty. That’s not just a failure of an attorney, that’s a catastrophic failure of the entire system. Police, prosecutors, defense attorneys, and judges all bear culpability when an innocent person is locked away. Society is diminished.
Now back to this vehicle prowl case. As a witness/victim, I do want the person to be found guilty. But as an attorney and officer of the court, I still want that person to have every procedural and constitutional protection afforded to him. He deserves effective counsel and he deserves his day in court.
What if at the end of those proceedings the person is exonerated by a jury? I won’t consider that a failure, far from it. Something went awry in the process to be sure, but that means the government learns from their mistake and is more meticulous next time. Part of making sure that innocent people never get locked up is having guilty people get away with it from time to time. That’s a trade that anyone who values freedom should be happy to make.
One final point is about emotion. Emotions are where cases truly get derailed and justice gets lost. I have the education and experience to not get particularly invested in this defendant’s case, because again, I work with this system on a daily basis. Certainly we were angry and upset and full of adrenaline when we saw the guy. But that doesn’t mean the person deserves to be treated less justly than any other person.
From my talks with “civilians,” it seems a lot of people are all for principles of rights and constitutions, up until 1) it happens to them, or 2) the accused crime is really nasty.
This is completely understandable but it’s also the slipperiest slope I know. Our system needs to be strongest when we’re most tempted to cut corners. It’s completely ok to be upset and even enraged by the actions of another. But it’s those feelings, when we are most hotheaded, that require us to apply the law equally and fairly. If we can protect the rights of people accused of rapes and murders, we know that if we or loved ones are ever accused of something, those rights will also be preserved.
Ultimately this experience wasn’t so bad. No one got hurt; perhaps a colleague will get some business. Instead the experience re-affirmed my dedication to my work and my loyalty to the process that protects us all. That arrested fellow is going to have a tough time over the next few months, but I’m ready to move on and help my next client.
A while ago I wrote an article about the Collateral Consequences of a Criminal Conviction. Collateral consequences are those beyond fines and jail and probation, i.e. what a judge hands down. Collateral consequences are the inability to vote or being deported. For this week’s post I’m going to focus on just one of those consequences: employment complications.
A recent article by The Nation reminded me of these issues. The subtitle of the article says it all: “How a Criminal Record Keeps you Unemployed for Life.” The article and its comments include a host of anecdotes from people who couldn’t secure meaningful employment due to a criminal record.
The biggest issue cited by the article is fear from employers. Fear of the ex-con running amok, or fear that their clientele will think less of the company because they hired a criminal. The article makes it clear employee discrimination based on a record is often illegal. But tell that to the people with records still looking for work.
I see this issue a lot in my practice. As a former public defender, and even in private practice, I work with people who have criminal records. Their lives are intrinsically, permanently worse because of the conviction interfering with their job prospects (or housing prospects or financial aid prospects). It’s a rare case for someone with a record to not be worse off in some way because of the conviction.
This is one of the reasons my ultimate goal in representation is to keep someone free of a criminal record. If someone walks in and for the first time in their life they’ve been charged with a crime, my goal is for their record to remain unblemished when their case resolves.
Sometimes this can entail a fight. On a first offense, for a lot of crimes (not all) the prosecutor makes an offer that a defendant will plead guilty in exchange for zero jail time. Clients think this is a great deal.
Client: “Yay no jail! The case will be over and I can get on with my life.”
Me: “Yay! Except boo because while the case will be over, the conviction will follow you forever!”
The problem with any conviction is that as the article makes clear, employers do background checks. If you have a record, they’ll compare you to other applicants that don’t. Depending on the job, one stain can put an applicant into the rejected pile.
What happens when someone can’t get meaningful employment, but still needs to feed and clothe their family? Perhaps they turn back to crime? In Washington State, as of 2010, felons have a 33% recidivism rate. That means more victims and more cost to the taxpayers. Keeping someone in jail costs $30,000 per prisoner per year. While I can’t discourage crime, or lower the costs of keeping people in jail, I can help prevent people from being caught in the system.
There are ways to avoid a conviction. One way is, of course, to win at trial. This is the riskiest option as it’s a “win all/lose all” option. But if a prosecutor’s offer is merely to plead guilty to the crime charged, we might take a close look at trial. But there are also other options.
Sometimes, a case can be won with pre-trial motions. If the facts support it, some motions can get key evidence or even the entire case tossed out of court. There are also resolutions that don’t result in convictions, like deferred prosecutions or deferred sentences. Obviously, one of my jobs is to navigate this process for my clients.
There are times where a conviction is pretty likely. As I explain in my FAQ I never promise results. Another method to reduce the collateral impact is to seek a reduced charge that is more innocuous than the original charge. For example, if a client was accused of murder and the resolution was to plead to Trespass 2; depending on the facts that might be a good resolution. One of my mentors sometimes asks what charge a client of his would be willing to plead to. He’ll say his client is willing to accept the consequences of Following Too Close (check it out).
If the worst happens and a client is convicted, their criminal record can be cleaned up. I do some work with vacating/expunging criminal convictions. It’s a byzantine process and I’d rather someone not have a conviction in the first place. Regardless, in Washington, certain crimes can be wiped off someone’s record. I’ll talk more about that process in a future post.
If you or someone you know has been charged with a crime for the first time, or have a conviction that’s causing employment troubles, give me a call. We might be able to solve the issue for good.
The Seattle Times just came out with a new article about speeding tickets and biking. For anyone who drives or bikes in Seattle it’s required reading. But here are the main points:
- Cops hang out at schools during specific hours to hand out tickets. Those hours are when the “School Zone” lights are flashing, which is also when the speed limit on those streets drops to 20 mph. I’ve represented people who have received tickets at these places and I can tell you the tickets are more expensive and generally harder to fight. So be extra careful about going over 20 when you see those lights.
- Bicyclists are getting tickets! The law is clear that the rules of the road apply to bicyclists too. But it’s still been relatively rare for bicyclists to receive tickets, simply because 1) there are more cars than bikes on the road, 2) it’s harder to prove a case against bicyclists for violations, and 3) the tickets are less expensive for bikers than drivers.
But this article makes it clear that bicyclists are not immune to receiving an infraction. The takeaway is clear: cops are hanging out around school zones trying to give tickets to anyone they can. Be cautious, and drive or bike slower when you see those flashing lights.
The American court system is described as an “adversarial” system. That means our system relies on two sides zealously throwing their weight around until the winning side arises from the wreckage.
This system has pros and cons. The obvious pro is that when both sides come ready for war, the issue becomes fully litigated. We thus have more faith in the outcome.
The obvious con is that, where there are winners there are also losers. The adversarial system inherently means one side loses. Which is fine if you’re on the winning side but, well, you know.
The natural solution to the winner-takes-all approach is compromise. Plea bargains and settlements are both mechanisms lawyers use to control the outcome of a case. Someone sues someone else, or someone is charged with a crime. Then the lawyers get together to hash out a mutually agreeable resolution, détente, case closed.
I like compromise and I like assured outcomes. I like being able to tell a client “You’re doing to do X, and in 12 months the charge will be automatically dismissed. No need to throw your fate to a jury.” Clients generally seem to appreciate it too.
All that being said, I enjoy a good scrap too. I was reminded of that this week. I drafted a motion to get some relatively confidential records, which is rare but not particularly unusual. It looked like the other side wasn’t going to raise too much of a fuss about it.
But then one party got an expensive lawyer, and the Attorney General got involved, and lots of paper was thrown back and forth. The argument for these records is this afternoon.
Was I happy all these other people got involved in this? I mean, for the client’s sake it would have been great if the motion was granted unopposed. But…it’s more fun the other way.
There’s no compromise on this one. Everyone’s getting together and we’re going to have an (intellectually speaking) bare-knuckle brawl over these records. As I’m sitting here right now, I’m very much looking forward to it.
Having spoken to colleagues over the years I feel this trait, a sense of anticipation over a big motion or a big trial, part and parcel with the work we do. Sometimes negotiations break down. We have to be ready to go to war at a moment’s notice. For people in my line of work, that moment is an exciting one.
All this to say: I really like my job.
Criminal defendants are entitled to effective assistance of counsel. Effective assistance includes a proper investigation of the case before motions or trial on a case. And to do a proper investigation, the defense attorney utilizes experts and investigators. (more…)
Last time I wrote about the evolution of the Fifth Amendment, I talked about the U.S. Supreme Court case Salinas v. Texas. I wrote about the Salinas case because the right to silence is near and dear to my heart, and from interacting with readers of this blog, I know it’s relevant to their interests too. But case law involving constitutional issues are important because constitutional protections are the biggest shield from unlawful government activity. What does that mean? I’ll explain
Almost all constitutional clauses and constitutional amendments either require the government to do something or prohibit the government from doing something. The Fifth Amendment doesn’t technically give someone a right to silence. Rather, it prohibits the government from compelling someone to speak against his or her own interest. Two sides of the same coin perhaps, but the distinction is relevant when addressing whether a government action is unlawful. If a government action is unconstitutional, and thus unlawful, it is void. This also means if a prosecution was based on something that is constitutionally protected, that prosecution and any resultant conviction is also void.
Cases involving constitutional issues happen all the time. Did the police compel an interrogation? Was a backpack searched unlawfully? Was a soldier quartered in a private citizen’s home? However, cases that represent an evolution of constitutional case law are relatively rare, and followed closely by attorneys. One such case just came out, involving the First Amendment, and it’s the subject of this week’s post. (more…)
I’m a big advocate of not talking to the police. I advocate silence whenever someone is being investigated for a crime. And I advocate this for two reasons: 1) you are likely to get yourself in more trouble by talking, and 2) your silence can’t be used against you in future proceedings.
Both of these are still true, but the United States Supreme Court has been eroding the protections of the inviolate silence recently. Your silence still can’t be used against you, but only if you properly invoke your constitutional right to silence. It gets a little muddy here, but let’s look at bit closer. (more…)
As I write this I’m waiting for a client to come to the office. Yes it’s a holiday but when someone is charged with a crime, that..situation permeate’s one’s life. The client had some issues that needed addressing so this morning we’re addressing them. Tonight, beer and fireworks.
Because of my work I sometimes get sent links about egregious charging decisions or police conduct. No one thinks I can do anything about it, just “Hey you work in criminal justice. Here’s a story involving criminal justice.”
Like this one. If the allegations are true, a bunch of cops wanted to rent out a guy’s house for “tactical” reasons, and when the homeowner didn’t want to give up his living room, they arrested him, his family, and used his house anyway. He’s suing them now, and I wish him all the luck in the world in his endeavors.
But that story isn’t really about criminal justice or the police. It’s about bullies. People with an over-entitled belief in their own superiority, and the resources to implement them.
We don’t care about people who think the rules don’t apply to them, as long as they don’t do anything with those thoughts. And we don’t care about people with weapons, or even a small army as long as, again, they don’t do anything destructive with those weapons and soldiers. But a group that thinks they’re above the law, with the resources to implement their self-aggrandizing? That’s when people get hurt.
Our constitution, borne of a bloody war hundreds of years ago, enshrines principles that persist today. These principles include restraints on government, a belief of innocence until proven otherwise, and due process of law. These are all responses to a period in our culture’s history where governments were tyrannical and didn’t afford people the basic human right to face their accuser and get a fair trial. The King’s word was law, and he had an army to back it up.
We need to be careful not to backslide to those dark times. Instead of a King, a Police Chief makes a decree and his or her will is carried out. That’s not the society we want to live in (unless you’re in the ruling class I guess, but most of us aren’t).
I’m lucky, I get to fight this. I’m on the front lines every day. I get to say to the powers that be, “Hold on. You need more than an accusation to lock up a citizen, to take away their property and liberty.”
I don’t always win of course. But I make sure, win or lose, that my clients get a fair shake. That they don’t get bullied by people in power simply because a bully think he’s entitled to levy a charge or take something he wants. Our constitution doesn’t promise everyone will stay out of jail. It does promise that if the government tries to put someone in jail, they have to go through a process, and it’s the same process they do with everyone. Part of that process is facing the accuser and testing the evidence. I don’t know if it’s the fairest system in the world, but I like it a whole lot better than rule by fiat.
So my request this 4th of July is to keep sending me those articles of outrageous conduct, but also send them to people who aren’t in my line of work. Share the news of outrageous conduct, shine a bright light on it, so that everyone remembers our society’s values, and what things look like when those ideals are not being met. There are a lot of ways to fight bullies. And bullies deserve to be stopped whenever encountered.
Happy Independence Day.