Resentencing Observations

by: Ryan Scott • July 14, 2024 • no comments

This is the first of two blog posts I want to write today regarding sentencing.

I've handled my share of re-sentencings, sometimes after I handled the original sentencing, sometimes when I hadn't. The observation I most want to make is that judges often won't impose the same sentence even when they could.

That hasn't always been true in my cases but it's been more true than not. The reasons vary. One is that the defendant has done very well in prison and there is a record of it. Other times it is because the defendant is able to express remorse that they weren't able to right after the trial. At least one time I think it was merely because enough time had passed that the judge had forgotten about the trial that had originally inspired enough feeling that she hammered the defendant originally out of anger or at least pique. Without that emotion behind it, the sentence came back down to earth.

It's impossible to know how much of a role I played, but I did a lot of work in all of those cases. I never treated a re-sentencing as pro forma, except when there really was only one sentence the court could impose at re-sentencing. But more likely, re-sentencings that went well probably did so because of the defendant and things they had done since the original sentencing.

My second observation is this. It wasn't always predictable which clients would do well in prison. I was often surprised by the clients who did truly wonderful and impressive things while incarcerated.

Have these observations changed my practice in any way? Not that I've noticed, but it has reaffirmed my belief in the importance of making as many legal arguments at sentencing as possible, even if the benefit of winning isn't always obvious. So, for example, I'll argue for merger of UUW and Murder with a Firearm. In such cases where merger is appropriate, the merger won't reduce the overall sentence because separate sentences would run concurrently. But by making the argument, either (1) the trial judge will agree and my client will have one fewer convictions, which is always better than more convictions, or (2) the judge will disagree and if the COA says I'm right, my client will have a shot at a re-sentencing that might reduce his sentence. (In theory, any re-sentencing might have no chance at reducing the original sentence, if the judge ran all counts concurrently to the mandatory murder sentence, but in my experience, most judges are constitutionally incapable of not tacking on an additional sentence to run consecutively to even a life/25 sentence. There must be some additional cost for going to trial.)

I think there are lawyers who are hesitant to make legal arguments at sentencing, murder sentencings in particular. They want the focus to be on a just and fair sentence, and arguing about the statutes will distract from their argument why life/25 is more than sufficient to satisfy the ends of justice. I think this attitude constitutes gross malpractice, and fortunately I think it's relatively rare.