New Jersey Criminal Defense Attorney Blog
One of the many defendants I have represented in federal district court in New Jersey resolved his case by pleading guilty to certain offenses that typically call for the imposition of a prison sentence. After long and difficult negotiations with the US Attorney’s Office, and in light of other facts and circumstances unique to that case, I successfully persuaded the Government to recommend a sharply reduced sentence. Had the court adopted the Government’s recommendation, my client would have received non-custodial probation.
I participated in a chambers conference with the judge and the US Attorney at a hearing prior to the sentencing date. During this conference, which was off the record, the judge stated that they “always” place defendants like my client in jail. The judge said this before reading a pre-sentence investigation report (one had yet to be prepared), a sentencing memorandum from either attorney (also not prepared at this stage), or the Government’s formal request for a reduced sentence (same). Neither had the judge seen correspondence from friends or family members, or heard oral argument in connection with sentencing. I foolishly believed that the judge would actually do their job, consider all of this material when it had been properly presented, and probably see things differently once a full record had been made.
Foolish was right – even on a full record consisting of all of the foregoing items, this judge still sentenced my client to a (brief) custodial term, and then denied my motion for reconsideration. In other words, this judge did what they “always” did in this type of case, regardless of what was in the record. Ultimately, making a full record turned out to be a total waste of time and effort. The judge could not have cared less about the unique facts and circumstances of this case or any of the submissions, but rather focused solely on their past practices in what they viewed as similar cases with absolutely no regard for anything else. In my mind, this was as astonishing example of thoughtless, cookie-cutter justice at its worst.I recalled this incredibly unpleasant experience as I read the recent New Jersey Supreme Court decision of State v. McFarlane, which held that similar conduct by a Superior Court judge was inappropriate, and may have resulted in a sentence that was arbitrary and/or excessive. Briefly, McFarlane’s jury convicted him of, among other things, first-degree murder, and the trial judge sentenced him to a 60-year custodial term on that count. On appeal, McFarlane’s attorney moved to supplement the appellate record with a transcript from an unrelated murder case where the same judge said “I always give defendants convicted by a jury [of first-degree murder] a minimum of 60 years NERA, and you can check my record.” Indeed, a review of the judge’s record substantiated this claim. This judge apparently sentenced every defendant convicted of first-degree murder in their court to 60 years. In fact, this judge even imposed that sentence in such a case where the State sought a 72-year custodial term. Thus, in this judge’s mind, first degree murder = 60 NERA, and nothing else mattered.
In criticizing this judge’s conduct, the Supreme Court observed that New Jersey’s sentencing statute generally requires a trial judge to balance two competing considerations. The first is the need for uniformity in sentencing. Different defendants convicted of the same offense cannot receive widely disparate sentences. At the same time, however, the unique facts and circumstances surrounding the case and the defendant should factor into the sentencing calculus. Indictable offenses of different degrees (first through fourth) have sentencing ranges. A defendant convicted of an offense of a particular degree should ordinarily be sentenced within that range unless there is a reason to deviate from it in their case. The statute may call for a different sentence for that particular offense. The defendant may be eligible for an extended term because of prior convictions. There may be a reason to sentence the defendant a degree lower. The trial judge must also consider statutory aggravating factors (reasons to impose a harsher sentence), and mitigating factors (reasons to impose a more lenient sentence). Most significantly, the trial judge must place their reasoning underlying the sentence imposed on the record. Doing so facilitates appellate review of the sentence, and fosters confidence in its propriety by informing the general public of is logical underpinnings.
In McFarlane, the judge’s statements and prior sentencing record called the sentence into question to the point that the Supreme Court remanded for resentencing – by a different judge in the same court.
In a sense, McFarlane’s message is simple. A judge cannot base a sentence on preconceived notions of what is proper, and must place the facts and analysis underlying their sentencing decision on the record. This, however, begs an important question – how can a defense attorney create a full record for sentencing?
In indictable cases, this record will include an adult pre-sentence investigation report, which is prepared by a probation officer. This report contains a summary of the facts of the case, as well as a description of the defendant’s background and criminal history. Defense counsel must review this report carefully for accuracy, and bring any errors or omissions to the sentencing court’s attention. Defense counsel should also submit a sentencing memorandum to the court that argues for applicable mitigating factors that can be balanced against any applicable aggravating factors, thereby placing their client in a more favorable light. The defense attorney can also identify friends and family members to speak on the defendant’s behalf at sentencing. This is not an absolute right but I have never had a judge deny permission to make such a presentation, and some judges will specifically counsel if there is anyone present at the sentencing hearing to speak on the defendant’s behalf. Individuals can also write letters to the judge on the defendant’s behalf, but it is probably a good idea if those letters are first reviewed by defense counsel before they are submitted to the court. The defendant has the right to address the court at sentencing. If they choose to do so, counsel should prepare the defendant to make an appropriate statement. Finally, counsel has the right to make their own oral presentation at sentencing. This kind of comprehensive presentation creates a complete record that gives the sentencing judge all available information concerning the defendant and their case, thereby helping to ensure that the sentence imposed fits the case and the conviction. An intellectually honest judge will factor all of this information into their sentencing decision. Alternatively, such a presentation helps create a complete record for appellate review.
James S. Friedman LLC represents criminal defendants in the state and federal trial courts located in New Jersey and New York City. If you have a criminal matter in one of these courts, contact us immediately to discuss your case, to learn about your options, and to start planning your defense strategy.
