The law isn’t always consistent, or interpreted consistently. The US Sentencing Guidelines provisions are always applied at the discretion of the Judge, meaning that a wide variation can result in terms of the “end result” that a defendant is faced with. Many different factors can influence a Judge’s decision, but differing interpretations of the Sentencing Guidelines themselves can play a large role.
The sentencing approach in the college admissions scandal shows how variable the judicial approach can be: if the parents did not cause anyone financial harm, or did not intend to, what kind of “loss” was actually caused that they can be held accountable for? Another complex area is the interpretation of probation by prosecutors, defence lawyers, and the Judiciary: with varying considerations applied, wildly different results can apply from case to case.
Intended Loss
The interpretation of “intended loss” has varied widely in the courts, namely centering around whether it should be interpreted objectively or subjectively. An objective interpretation of intended loss would be the “objectively reasonable expectation” of a similar person committing a similar crime, i.e. what a “reasonable man” would have intended.
On the other hand, a subjective interpretation of intended loss would be what the defendant actually intended in terms of loss suffered by the victim, the loss the defendant purposefully intended to inflict. Intention is viewed as a stronger standard than “knowledge”, and does not incorporate issues such as reasonableness, wilful blindness, or recklessness.
Part of the difficulty with the interpretation of “intended loss” is due to the way in which the Sentencing Guidelines operate. Instead of the judiciary having full discretion in sentencing, or binding rules to follow, a hybrid approach is taken.
The Sentencing Guidelines provide a framework for Judges to follow, while allowing some discretion to remain. This leads to outcomes in which the suggestions of the Sentencing Guidelines are not followed strictly, leaving room for many different interpretations and applications in any given case.
Probation
18 U.S. Code § 3563 and 18 U.S. Code § 3583 cover terms of probation and supervised release, but Judges can also still use their discretion in deciding the length of time that will be ordered, as well as the conditions of the probation or supervised release. Probation is a sentence that can be used as an alternative to incarceration, while a term of supervised release occurs after incarceration has already occurred.
For example, under 18 U.S. Code § 3563 there are a number of mandatory conditions that apply to probation, such as the defendant not committing further crimes while on probation. Other conditions are discretionary, and can be applied by the Judge as they see fit.
The term of probation is set out in 18 U.S. Code § 3561, which sets limits as follows:
(1) for a felony, not less than one nor more than five years;
(2) for a misdemeanor, not more than five years; and
(3) for an infraction, not more than one year.
In addition, the Sentencing Guidelines set out different recommendations for the length of probation, as well as additional conditions such as community confinement, home detention, or intermittent confinement. Because these statutory limits and Guidelines include a range, Judges can use their discretion in deciding on the length of probation, and which conditions to apply.
Defendants should be aware that defense and prosecution lawyers can both make their best estimates or recommendations to the judiciary, but that Judges ultimately decide on sentencing at their discretion. This means it can be somewhat hard to predict what sentence will be handed down. In the college admissions scandal case, for example, it appears that the parents may be given sentences lower than what was expected due to varying interpretations.
Call Stechschulte Nell For Help
If you are unsure about how sentencing may be carried out, or how different judges interpret provisions related to your case, the attorneys of Stechschulte Nell can advise you. Call our top-rated Tampa, FL law firm at (813) 280-1244 to speak to an experienced defense attorney. We’re available 24/7 to take your call.
