CrimLaw adds detail on predictive sentencing

Ken Lammers, Jr. at the CrimLaw blog is a criminal defense attorney in Virginia, so he had special insight into the New York Times article on predictive sentencing in that state that Grits blogged about last week. On their face, the Virginia sentencing guidelines recommend harsher punishments based on immutable facts like age, gender and employment status. Lammers, though, says those probably unconstitutional provisions aren't really being enforced:

"When this sheet was added to the sentencing guidelines I think every defense attorney I know had the same reaction as the NYTimes: that section is clearly unconstitutional. And we told the judges as much. I can clearly remember standing in front of a judge and illustrating this issue by pointing out that I would start out with 22 points and 31 if court appointed work didn't count as regular employment. Although I never got a one to say it out loud, the judges, through their actions, seemed to agree. I've even had a few prosecutors admit to me that they believe it unconstitutional (off the record).

"The net effect has been that this sheet has become the most ignored section of the sentencing guidelines (remember Virginia's guidelines are recommendations and can be ignored). I rarely hear competent prosecutors give it more than a pro forma mention and judges do not claim it as the basis for their decisions. The argument has once again devolved to where it should be: the merits and failings of the individual in front of the judge. I've had a number of clients who do not qualify under this section receive alternative sentences and I've had clients who easily qualify be denied. I cannot claim this is the way it is around the entire Commonwealth but it is my experience in the jurisdictions wherein I practice."

That makes a lot of sense. It was hard to understand how such provisions had avoided constitutional challenge. Lammers gives much more detail, including examples of the sentencing recommendation sheets used in his jurisdiction. His post really adds a lot of value to the New York Times coverage, and (belatedly) earns CrimLaw a place on the blogroll. I appreciate Ken letting me know about it.