Federal criminal defense attorney

Criminal Records Search
By Danny Brown

In due diligence research, a criminal records search is a typical component of the procedure. In this very digitized time, performing every kind of search ought to be a good deal easier now that we have the correct technology to do it. But, no matter how much information is stored in the Internet, not anything beats the manual practice of retrieving public records. Frequently, traditional “gum shoe” techniques are necessary and researchers discover that more frequently than not, they have to rely on less technical means to a do a criminal records search.

The Nationwide Criminal Records Search

Criminal records searches would be a good deal easier to complete if there was one sole database containing all public records from all state databases. But the dilemma is that there is none. No one sole, “nationwide” database of criminal records exists today. In actuality, the closest we can still find to a nationwide database is not even considered as “public.” The FBI database, called the National Criminal Information Center or NCIC, include records that are classified or confidential and no one, except for those from the criminal justice agencies, can lawfully retrieve any of the records contained in the database.

The Alternative

Thus, the only other alternative that a public records research has is to target local databases. Many states maintain databases of criminal records search information. Out of 50 U.S. states, 29 have state central repositories of criminal records search data. State databases are useful places to begin a criminal records search but they shouldn t be the single resource you have. This is because state databases typically deal with criminal records search information about convictions. Lesser misdemeanors are not typically incorporated in central repositories as states do not call for their law enforcement agencies to generate fingerprint reports of such cases.

State central repositories only contain criminal records search information of crimes of a serious nature, such as felonies, class A misdemeanors, and even class B misdemeanors. In addition, most states do not allow public access to juvenile records therefore in your criminal records search, you may not be able to get any juvenile information about your subject.

County Level Criminal Records Search

Perhaps the top sources of criminal records search information are county databases. Counties typically keep indexes of nearly every relevant statistics concerning the public. As a result, you can discover anything from governor billets, ordinances, county court cases, court decisions, arrests, warrants issued, profiles of most wanted individuals, sex offenders, and more. You can even do a criminal records search using the directory of county inmates and look at pictures of criminals that have been released from prison or are currently serving sentence.

Court Records

The best way to validate if a criminal action has been initiated by somebody is to execute a criminal records search through court records. However, this type of criminal records search may cost some money. There are a number of district courts in every state and each of these has several branches. There are municipal courts which try misdemeanor cases while circuit courts try felony cases. Performing a criminal records search by this process means having to hunt throughout the proceedings of every court which you think may have information about your subject.

To learn about more criminal records research and find criminal records. Visit our site at http://www.find-criminal-recordsonline.com

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White Collar Criminal Defense
By Steve Valentino

While the word crime immediately springs to the mind images of theft, rape and murder, it also has another association that is not so gruesome. White collar crime is something that takes place in the almost sanitized environments of an office and is committed by people one would never normally associate with any wrongdoing. These are not the typical crimes of passion driven by emotional surges nor are they carried out to settle scores. Rather, most of the white collar crimes are carefully thought out, complex plans that are prompted by the greed for money or power. The phrase “white collar crime” was first coined by Edwin Sutherland while addressing members of the American Sociological Society in 1939. He termed it as a “crime committed by a person of respectability and high social status in the course of his occupation.”

Mostly non-violent in nature, white collar crimes cover a wide spectrum of transactions that may involve antitrust violations, computer frauds, credit card misuse, bankruptcy appeals, healthcare benefits, violations of environmental laws, insurance payments, tax evasion, financial misappropriations, insider trading in stocks and shares, bribery, currency counterfeiting, embezzlement of funds or thefts of trade secrets. Tracking down white collar crimes and those who commit them is always considered a tough proposition because the pattern of such crimes is truly complicated that brings into play a series of transactions, many of which have been carefully hidden or erased.

If there is a general feeling that white collar criminals often get away with light sentences, the feeling may be the case because it is often true. And it could be thanks to the fact that they can very often afford the best legal help. It is possible the difference in the quality of the defense that the disparity exists in punishment of white collar and conventional crime offenders even though cases of frauds and embezzlement involving huge sums of money can be equally stressful and psychologically injurious. A study conducted in the United States led to the conclusion that most white collar criminals get away with more crimes and less punishment than others. For example, white collar offenders received an average sentence of 22 months as compared to burglary and motor vehicle theft offenders who were punished for 31 and 27 months respectively.

A more specific study conducted during the nineties laid bare the disparity in clear terms. In terms of duration of imprisonment, those incarcerated for losses in excess of $100,000 or more as a result of the savings and loan scandals received an average of 36.4 months in prison. During the same time period, those non-violent federal offenders who committed burglary got 55.6 months, car theft received 38 months, and first-time drug dealing averaged 65 months.

Criminal Defense provides detailed information on Criminal Defense, Criminal Defense Attorneys, White Collar Criminal Defense, Criminal Defense Law and more. Criminal Defense is affiliated with San Diego Dui Laws.

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Find Criminal Records Via A Government Records Search
By Richard Smith

Criminals are everywhere and crime is on the rise. All the more reason for you to employ modern technology to sift out the criminals when loooking for a new employee. Would you really trust someone proven to be dishonest to work for you and deal with your private affairs? I know that I wouldn t.

Luckily you can find criminal records, and also financial records to check solvency, via an online government records search. Modern indexed and cross references databases allow for retrieval within seconds of an individual s pertinent history. With this knowledge, you can decide whether or not to employ a person. For instance, you may hire a potential accountant despite his violent criminal conviction because he has no financial irregularities or fraud convictions - this is an example of a detailed version of a government records search.

Criminal records searches are not simple binary machines offering an affirmative or negative answer. Usually depending on the cost involved, you can find as much or as little details as you need. For instance, you can restrict the search to your immediate locality, your state or even nationwide.

One application to find criminal records is to search for local sex offenders in an area that you will be moving to. By doing a government records search, you can ensure that your child will be safe playing in the neighborhood.

When hiring a prospective new employee, you should perform different checks. First of all, get written summaries of date of birth, full name and residences for the last five years. Also obtain the social security number. Then perform criminal searches for every county in which the person has resided (these are more reliable than national searches). Secondly, search the national sex offender registry as such offences often do not come up on the usual state searches.

As you can see, the ability to find criminal records via a government records search is not only a useful tool but more so an essential tool for employers and individuals alike to use.

Richard Smith offers further detailed information about learning how to find criminal records at http://www.findrecords.info, a dedicated records website.

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Criminal Inadmissibility and the “Petty Offense Exception”
By Orlando Ortega-Medina

MYTH: If you have ever been convicted of a any criminal offense, you are automatically inadmissible to the United States and must apply for a waiver.

“Hello, Attorney Ortega, I need a waiver and I need it fast. I am booked on a flight to Miami that leaves in a week to attend a convention, and I just found out that I am inadmissible.”

“Have you already been refused entry to the United States?”

“No, but?”

“Then what makes you think you are inadmissible?”

“Well, I have a criminal conviction.”

“All right, we will get to that in a second why do you think that you re inadmissible?”

“A friend of mine told me that having a criminal conviction makes me automatically inadmissible. So I called the U.S. embassy, and they confirmed it and said I would definitely need a waiver. They told me it would take 20 weeks to process, but I can t wait that long!”

“What was the conviction for?”

“Drunk driving.”

“Is that your only conviction?”

“Yes.”

“What was the sentence?”

“Three years probations, plus I had to pay a fine and go to traffic school.”

“Anything else?”

“No. That s it.”

Our office receives frantic telephone calls like the one quoted above on almost a daily basis, from people about to embark on a trip to the United States who have been told that they are inadmissible to the United States because of a past criminal conviction. By the time we speak with them, many of these people are almost resigned to canceling their travel plans.

These individuals have been told by their employers, their colleagues, or even the U.S. embassy that their single criminal conviction makes them inadmissible and that they must apply for a waiver — which could take from 6 months to a year to process. That s when the panic sets in. Airline tickets have already been purchase, and hotel rooms reserved friends and family are eagerly awaiting at the other end. “Isn t there a faster way to get a waiver?” they ask.

In fact, many individuals may not be inadmissible at all regardless of their conviction. Or if they are, they may qualify for what is known as the “petty offense exception” set out in section 212 of the Immigration and Nationality Act (”the Act ).

According to the Act, a noncitizen who has been convicted, or who admits the essential elements, of a crime involving moral turpitude (”CMT”) is inadmissible. Thus, the first thing to consider is whether ones conviction falls under the CMT category or not. By way of example, a single drunk driving conviction does not fall under this category, and does not render one inadmissible. In other words, a waiver is not required in this circumstance. However, the question of whether a particular offense is or is not a CMT requires some research.

If research reveals that one has been convicted of even a single CMT, then one is clearly inadmissible under the Act. However the Act sets out an exception that has come to be known as the “petty offense exception”. To qualify for the “petty offense exception”, an applicant for admission to the United States must show:

a.) he or she committed only one crime

b.) the maximum penalty possible for the crime did not exceed imprisonment for one year and

c.) the non citizen seeking admission was not sentenced to a term of imprisonment longer than 6 months.

Clearly, the only way to determine whether one meets the above elements of the exception requires an examination of both the conviction documents and the underlying law of the offense.

The good news is that if one satisfies the requirements of the “petty offense exception”, one may enter the United States without first visiting the embassy or enduring the lengthy and onerous burden of applying for a waiver.

Ultimately, the decision to admit or not to admit in such a case lies entirely in the hands of the inspecting officer at the U.S. port of entry. This officer is the person that must be convinced whether or not one is admissible under section 212 of the Act. Thus, to properly claim the “petty offense exception” it is essential that one be armed with the evidence and (preferably) the applicable legal authority.

Copyright 2006, Ortega-Medina & Associates Ltd. All Rights Reserved.
http://www.ortega-medina.com

Orlando Ortega-Medina is lead counsel for the United States business immigration law firm of Ortega-Medina & Associates Ltd., headquartered in London, England (UK). Prior to practicing in the field of business immigration and consular law, Mr. Ortega-Medina practiced both Criminal Defense and Deportation Defense in the State of California. Further, over the past five years he has represented scores of individuals from both the UK and Canada in a myriad of waiver matters. Thus, he has particular expertise and insight into the issue of criminal inadmissibility and its effects on both non-immigrant and immigrant visas.

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Is a Free Criminal Background Check the Way to Go?
By Matthew Bass

The more you understand about any subject, the more interesting it becomes. As you read this article you ll find that the subject of free criminal background check is certainly no exception.

A free criminal background check can be obtained but may, or may not, require more digging than a criminal background check that requires an application form and a fee. To begin one must first have enough information on the person to start the search. It is helpful to know the individual’s full name, address, birth date, social security number and county of residence. The more information you know at the onset the less work it will take to do a free criminal background check. Other important pieces of information the searcher should have at his or her disposal include knowing previous addresses for the person being searched and/or knowing the names and addresses where the person has worked or conducted business.

Not all states have the same laws governing free criminal background checks. Some states are stricter about the information they make available to the public than are others. Privacy and safety for both parties must always be respected at all times. Online access is available in some states for certain offences but not in others. For example, the registry for sex offenders (SORs) is most often the one the public can gain easy access to. Some states require a written application form be filled out and will only respond via postal mail whereas other states will provide information over the telephone or by way of fax.

Sometimes the most important aspects of a subject are not immediately obvious. Keep reading to get the complete picture.

What might be a matter of public record in one state could be disallowed in another. For that reason a free criminal background check is a simple task for some people eager for information but a more time consuming and pricey one for others. To use a specific example, in the state of Maine, voter registration records are available for the public to view but in Pennsylvania it is against the law to use this kind of information for any no-political reasons.

A free background check will more often than not only yield a small portion of the information you seek on a particular individual. If you are looking for an extremely detailed report including specific dates and places, arrests, convictions, length of time spent in prison, parole information and current living and working status for the person a free background check might not be the way to go. You might want instead to consider finding information from a source where you must pay for information but are guaranteed to receive exactly what you paid for. Some people choose not to do the legwork themselves and instead hire themselves a private investigator.

However bear in mind that a free background check does have its positive side and sometimes can be used as a jumping off point for your search. You might wish to begin your search by going the free route, see what you can gain this way and then take it to a higher level by delving deeper with a paid criminal background report. Any information you find should prove beneficial to your search, no matter what method you choose to employ. Researching free criminal background checks over the net by way of government websites is becoming more and more popular all of the time.

There s no doubt that the topic of free criminal background check can be fascinating. If you still have unanswered questions about free criminal background check, you may find what you re looking for in the next article.

Matthew Bass of BackgroundCheckWizard.com provides more recommendations and information on

Criminal Background Checks that you can research at your leisure on his website.

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Criminal Records Online
By Jennifer Bailey

For the past few years, almost all state and country governments have started making criminal records available to the public online via the Internet. Now, the Internet has become an open source of information that offers manifold avenues for searching information. So any private citizen or any organization can avail of the criminal records online whatever they want, usually within two to ten business days.

The Pacific Information Resources site has a list of online criminal records. Some of these sites like the Oklahoma site provide information about criminal records free of charge. However some of these sites charge for providing the accessibility of the records. Most government agencies now make their records available online as they think that they can make money by selling the records. The charges of websites vary from one another depending on the level and amount of information and the kind of information. So one has to shop around for deciding the best site that suits ones requirements and capability to pay the charges.

While the majority of jurisdictions have computerized their criminal records, most of them now do not allow off-site access of criminal records. However, in many online criminal records the only information available is the name of defendant, case number, and date. Sometimes the penal code violations and disposition may not be listed in the online records for the purpose of providing privacy and protection to the witnesses involved. When compared to other off-line sources of retrieving information about criminal records, online search is the somewhat a least cost effective way. However, these results can be retrieved more quickly than those of other sources.

There is some risk involving in the online accessibility of criminal records. Almost all types of people are using Internet for browsing information. In such a context, if any errors are there in the online criminal records, they will seriously effect the reputation of the person involved.

Criminal Records provides detailed information about criminal records, criminal records online, and more. Criminal Records is affiliated with Bail Bond Agents.

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CA Criminal Record Expungement
By Francis Benjamin Lee

Clearing your criminal record in CA can be easy if you have the right forms, case numbers, dates and other pertinent information of your case. Once you have this information, you can save yourself a lot of money and time - and best of all you will not have to hire an expensive attorney.

But first, what will expunging your record do for you and why is it important to clear your criminal record?

Expungement of a criminal conviction is an excellent way to close a chapter on a past mistake. Expungement allows a person to move forward with their life, without the baggage of a prior conviction, or having to disclose a criminal record. Expungement provides freedom, peace of mind, and a clean slate.

Expungement of criminal convictions is the process that changes your plea from guilty or no contest to a not guilty plea. Expungement of a criminal case has many benefits, chiefly the ability to deny a conviction when asked by a potential employer.

What is the process?

Expungement begins by determining which type of relief is appropriate. The law will vary from state to state, so it is critical that you consult with a lawyer that knows the expungement law in your jurisdiction.

The type of expungement that will apply in your case will depend upon whether you were a juvenile or an adult at the time of the conviction whether the conviction was for a misdemeanor or a felony and whether you were placed on probation or went to state prison as part of your punishment.

Expungement will usually require a lawyer to draft a motion (a formal legal document asking the court to take a particular action). The expungement motion will be filed with the court that sentenced you, and will also have to be served on the prosecutor and, in some cases, the probation department.

To get an Order of Expungement, the court must be convinced that you have led an honest and upright life, and the interests of justice would be served by granting the request.

Here s how to get started Clearing (Expunging) A California Criminal Record

What Were The Details Of Your Conviction? In order to begin cleaning up your criminal record, you first need to know what is on your criminal record. The court will require you to fill out forms. Whether you are requesting a dismissal or a Certificate of Rehabilitation, you will need to know the details of your convictions(s) in order to complete the forms. Also, certain details will affect whether you are eligible. There are several details you will need to know in order to accomplish your goals:

o Your Case Number(s) [Sometimes called docket number.]

o Your Date(s) of Conviction(s) [The date of your plea or verdict.]

o The Code Name(s) and Section Number(s) you were convicted of violating.

o Was there a “Verdict” or did you “Enter a Plea”? If you Entered a Plea, was it “Guilty” or “Nolo Contendere” (No Contest)?

o Were you ordered to serve any time on “Probation”? If so, how long? [Formal and informal probation are treated the same.]

o Were you ordered to pay any “Fines,” “Restitution,” or “Reimbursement”?

o If you were sentenced to state prison, which one?

o If you were sentenced to state prison, what date were you released?

o If you were released on “Parole,” what date did your parole end?

Get a Copy of Your Criminal Records Information. Your criminal records information can be obtained from a variety of sources. Below is a list of the sources most commonly used.

1.Your court papers received at the time of conviction.

2.Your attorney, parole officer, probation officer, or contacts within the courts or law enforcement community.

3.The Superior Court where you were convicted. They will only have information for convictions from that county and not other counties. You will need to make a copy of your order(s) of judgment.

4.The California State Department of Justice, Criminal Records Division. They will have your criminal records information for the entire State of California.

They are located at 4949 Broadway, First Floor Fingerprinting Office, Sacramento, California. Their phone number is (916) 227-3400.

There is a fee, but you may be eligible for a fee waiver. You must provide written proof of your income. It may take several weeks for the record to arrive in the mail.

Your Options. Depending on your particular situation, you may have the following options:

If you were convicted of a misdemeanor and are still on probation, you may request early release from probation and file petition to have conviction dismissed. To do this, file a PC 1203.3 petition to have probation terminated early, and PC 1203.4 petition for expungement.

If you were convicted of a misdemeanor and have successfully completed probation you may file a petition to have conviction dismissed. To do this, file a PC 1203.4 petition for expungement.

If you were convicted of a misdemeanor and were never given any probation at all, you may file a petition to have conviction dismissed. To do this, file a PC 1203.4a petition for expungement

You were convicted of a felony and are still on probation you may request early release from probation and file a petition to have your conviction reduced to misdemeanor and dismissed. To do this, file a PC 1203.3 petition to have probation terminated early.

Also file a PC 17(b) petition to get felony reduced, and PC 1203.4 petition for expungement.

If you were convicted of a felony and are done with probation and/or county jail time you may file petition to have conviction reduced and dismissed.

To do this, file a PC 17(b) petition to get the felony reduced, and a PC 1203.4 petition for expungement

If you were convicted of a felony and were never given any probation at all and were sentenced to county jail, you may file a petition to have felony reduced to a misdemeanor and file petition to have conviction dismissed.

To do this file a PC 17(b) petition to get felony reduced and a PC 1203.4a petition for expungement.

You were convicted of a felony and were sentenced to state prison or under the authority of the California Department of Corrections, you may file a petition for Certificate of Rehabilitation and Pardon.

Dismissal Of Cases Not Involving State Prison Sentences: If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the California Department of Corrections you can petition for a dismissal.

This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilt if you went to trial, and enter a not guilty plea.

Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.

You are Eligible if:

1. If you were given probation, you have either completed it or obtained early release. If you violated your probation and it was either reinstated or revoked, then the court has discretion whether or not to grant you a dismissal.

2. If you were not given probation, it has been at least one year since the date of conviction.

3. You have paid all fines, restitution and reimbursement ordered by the court as part of your sentence.

4. You are not currently under arraignment for a new criminal offense (charges pending), nor are you on probation for another offense.

If you were convicted of any of the following offenses you are not eligible for a dismissal: Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803 Penal Code Section 261(d), 286(c), 288, 288a(c), 288.5 and 289(j).

If you were referred to a “diversion” program, you record will already be changed in one of two ways. If you successfully completed all of the diversion program requirements, your record should already be changed to show a dismissal.

If you didn t complete your requirements or were not actually given diversion, then the conviction will be on your record.

If you were convicted of possession of marijuana for personal use then you do not necessarily need to get a dismissal for the offense. Under California Health and Safety Code Sections 11361.5 and 11361.7 all possession of marijuana for personal use convictions, after January 1, 1976, are erased from your record after two years.

BE CAREFUL! The conviction cannot be for cultivation, sales or transportation. If it is, it will be on your record.

Your Juvenile records do appear on your criminal record. Upon your 18th birthday, you are eligible to petition to have your juvenile records sealed.

Once sealed, no one can gain access to them and they will be completely destroyed five years from the date of sealing.

Juvenile records are not automatically sealed upon your 18th birthday. You must affirmatively petition the juvenile court to have them sealed. You can do this by filing out a form and filing it with the juvenile court in the county in which you were convicted.

Contact the juvenile court in the county you were convicted, and ask them to send you a copy of the form used in that county.

Check to see if they have any special filing requirements such as additional photocopies or the need to serve copies of the petition on any government agencies, and get the correct information for filing by mail. Usually, there is no fee.

If you graduated from the California Youth Authority, your juvenile conviction(s) will have been dismissed as part of your graduation. If you do not petition to have your juvenile records sealed and destroyed, they will remain on your record until your 38th birthday, then they will be destroyed.

Procedure:

Complete and File the Petition(s) and Fee Waiver(s). If you are filing a petition for reducing a felony or a petition for early release from probation or for a dismissal, you will need to call the Clerk of the Superior Court for the county in which you were convicted, and ask them for the following information:

1. Have them send you as many copies of their form (if they have one) as you have convictions in that county.

2. Ask if you need to submit additional photocopies of the petition, and how many?

3. Ask if their rules of court require you to serve copies of your petition on the district attorney and/or probation department?

4. Ask what the correct mailing address is for filing by mail?

Remember, you can only dismiss one conviction at a time. This means you will fill out a separate petition for each conviction that you want to dismiss, but you can file them all at the same time. If you are currently on probation, you will need to deal with that conviction first, then you can proceed with the others. Usually there is a fee to file a petition for dismissal with the court. However, fee waivers are available to people who cannot afford to pay. Click here for court fee and waiver information.

File Your Petition(s) and Fee Waiver(s) With the Court(s) If you are filing a petition for reducing a felony or a petition for early release from probation or a dismissal, you will need to mail (or deliver in person) your filing materials to the Clerk of the Superior Court for the county of your conviction(s).

Be sure to include any supportive materials such as letters of support, school diplomas and/or transcripts, and if applying for early release from probation, include a letter to the judge explaining why you feel you should be released from probation early. At the time you file your papers, the clerk will set a hearing date.

If required in your county, be sure to serve the district attorney and/or probation department.

You will be required to attend the hearing, although for 1203.4 and 1203.4a petitions you may not have to appear. If you are required to attend the hearing BE SURE TO ATTEND. Be on time, and dress for conservatively If you petition is granted, make sure to put the order in a safe place for your records.

If Your Petition(s) is Denied. You may still be able to get your conviction(s) dismissed. After you receive the order from the judge denying your dismissal, you can either go to, or call, the Clerk at the courthouse to see if you can find out why the petition was denied and whether you can fix the problem and re-file.

Certificate of Rehabilitation. If you were sentenced to state prison or sentenced under the authority of the California Department of Corrections you are not eligible for a dismissal under Penal Code Section 1203.4 or 1203.4a.

You may, however, be eligible for a Certificate of Rehabilitation. For eligibility and application requirements contact the Board of Prison Terms, 428 J Street, 6th Floor, Sacramento, CA 95814. This is a lengthy process that may necessitate the assistance of a private attorney.

What Will A Dismissal Mean?:

Once all of your convictions have been dismissed:

1. On questions by Private Employers if you are asked if you have every been convicted of a crime, you must respond with “YES-CONVICTION DISMISSED.”

2. On questions by Government Employers or Government Licensing Applications if you are asked if you have ever been convicted of a crime, you MUST respond with “YES-CONVICTION DISMISSED.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of any crime.

3. You will not be allowed to own or possess a firearm until you would otherwise be able to do so.

4. Your dismissed conviction(s) can still be used to increase your punishment in future criminal cases.

5. Your prior conviction(s) can still affect your driving privileges.

6. If you have been required to register as a sex offender as a result of a conviction, you have to make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender.

DISCLAIMER: THE CONTENT IN THIS ARTICLE IS MERELY INFORMATION AND NOT LEGAL ADVICE. ONLY A QUALIFIED ATTORNEY CAN GIVE LEGAL ADVICE.

Many people have success expunging their criminal records without hiring an attorney. Frank Benjamin Lee, “The Expungement King” offers a FREE downloadabe report titled, “Expungement Secrets Lawyers Don t Want You To Know About.” To download it go to expunge123.com

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Our Criminal Courts: The Judge s Role in Sentencing
By Jeffrey Caminsky

Imagine two defendants, in court for sentencing:

The first defendant is a violent criminal. He attacked his victim in a parking lot, and continued to beat and kick the victim long after the victim had fallen to the pavement, unconscious. The victim nearly died on the way to the hospital, lost his own job because of the long convalescence, and is still walking with a noticeable limp several months later. The victim and his family are still suffering the consequences of the attack and demanding the longest sentence the judge can impose.

The second defendant is a young, first-time offender, who was a star athlete in high school and is planning to attend college. He and his girlfriend were accosted after leaving a convenience store by a group of thugs. Their gang leader picked a fight, not knowing that his would-be victim was more than his match. Unfortunately, the defendant lost his temper and, having gotten the upper hand, continued to fight long after the bully had fallen to the ground, unconscious. He inflicted major injuries to the body and head before calming down enough to realize what had happened. Even though the rest of the gang fled once it became apparent that their leader had gone down, the defendant was the one who called 9-1-1 to summon help, and he remained on the scene until the police arrived.

Most people would agree with the victim’s family, and think that the judge should throw the first defendant in jail for as long as possible. But many would feel a measure of sympathy for the second young man, who seems to be a decent sort who acted out of character for a momentand then, only when he was attacked, himself. And a lot of people might even be willing to cut the second defendant a little slack, especially since the bully may very well have died if the defendant hadn’t proved more help in a crisis that the bully’s own ne-er-do-well friends.

Judges are often blamed for our crime problem, dismissed as soft or too lenient on criminals. But sentencing a defendant is an intensely personal job. The judge must consider the offense as well as the offendermust take into account the damage caused by the act, as well as any extenuating circumstances that might suggest tempering justice with mercyand must do so in the face of the often-strong emotions that crime stirs in the hearts of victims and citizens. To be “soft on crime” may be a serious failing in a judge to be too cold-hearted to see the human tragedy that many crimes bring to everyone involved can be an oppressive one, as well.

The rigid formalities of a courtroom may strike some as pompous or pretentious. They harken back to our Common Law heritage, when judges were the representatives of the king. But we rise when the judge enters the room out of respect for the office, for the job can be difficult and, at times, heart-wrenching. Judges must, by the very nature of their work, make many difficult decisions every daydecisions that change the lives of the people that come before them.

Sometimes, when they are lucky, they have clear guidelines in the Law to guide their actions. They may not always like the result, but like everyone else they are just doing their jobs. And they can take some measure of comfort in the fact that they, too, are bound by the law.

At other times, the Law leaves the decision entirely to them. Their actions will be dictated not by Law but by their own conscienceand these decisions will be the loneliest, most difficult decisions of all.

Like deciding how to sentence the two defendants in court today…who happen to be the same person.

Jeffrey Caminsky, a veteran public prosecutor, specializes in the appellate practice of criminal law and writes on a wide range of topics. Both his science fiction adventure novel The Star Dancers, the first volume in the Guardians of Peace ™ science fiction adventure series, and The Referee’s Survival Guide, a book on soccer officiating, are published by New Alexandria Press, http://www.newalexandriapress.com