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June 8, 2010

In Missouri, it is the prosecutors complaining about sentencing guidelines

This local story from Missouri, which is headlined "Prosecutors seek changes to sentencing guidelines," reports on complaints about the state sentencing guidelines that are tellingly similar to complaints we hear about federal sentencing guidelines. But, as highlighted in this excerpt, the source of the usual complaint is tellingly distinct:

Some Missouri prosecutors remain unhappy with the way convicted criminals are sentenced, especially since the state began using sentencing guidelines in November 2005 that are based on actual sentencing practices of Missouri's trial judges.

"Prosecutors continue to be unhappy with the one-size-fits-all recommendations in the Missouri Sentencing Advisory Commission's recommendations," said Eric Zahnd, Platte County prosecutor and a member of the Missouri Association of Prosecuting Attorneys' legislative committee.  "There is, simply, no way to include enough variables in a recommended sentencing structure to provide a meaningful recommendation for any individual crime."

The association on Monday issued a news release thanking Supreme Court Judge Michael A. Wolff, who chairs the Missouri Sentencing Advisory Commission (MOSAC), for appointing a subcommittee to review the recommended sentences. During MOSAC's May 25th meeting, Wolff said prosecutors, public defenders and judges should be represented on that subcommittee.

Zahnd said prosecutors hope it will consider a "motion by prosecutors to abolish the recommended sentences, at least for violent and sexual offenses."  He said prosecutors particularly are unhappy with the "Sentencing Advisory Report," or SAR, that often is ordered by a judge before imposing a final sentence in a criminal case.  The prosecutors association said those "recommended sentences ... are unreasonably lenient, particularly for violent and sex crimes."

As serious sentencing fans know, in the federal system it is the defense attorneys who often lament "one-size-fits-all" sentencing rules and who often claim that unique individual sentencing factors make any guideline system inherently problematic.  It is telling and somewhat amusing to now hear these classic complaints about sentencing guidelines coming from prosecutors in Missouri.

Because I seriously doubt that all the state prosecutors in Missouri are former federal defenders, this story is really just an example of how sentencing advocates will often "shoot the messenger" of sentencing guidelines rather than just focus on their fundamental concern with the substance of sentencing rules they consider either too harsh (in the federal system) or too lenient (in Missouri's system).  Just as I am glad that the federal defense bar has failed to eliminate all guidelines in the federal system, I hope the Missouri prosecutors fail to bring down that their state's seemingly successful (and fully advisory) guideline system. 

June 8, 2010 at 09:07 AM | Permalink


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We started with a fully advisiory system in Michigan, first implemented only in Detroit. It then spread to the entie state. At the start, it reflected sentences actually imposed. Because sentences in Detroit tended to be more lenient than those imposed outstate, some of the sentences were (and in my mind, even as a defense attorney, still are) too low, especially for armed robbery. Maybe the Missouri scheme gives the strongest consideration to St. Louis and Kansas City results, instead of the longer sentences people in more rural areas are used to.

Posted by: Greg Jones | Jun 8, 2010 12:47:05 PM

If the damage exceeds the value of a life, around $6 million (overinflated by $4 million), the person has killed an economic person. The defendant in this case should be executed if he does not return all the missing money down to below $6 million.

Posted by: Supremacy Claus | Jun 8, 2010 1:25:07 PM

Once convicted of this economic crime, the defendant and Madoff types should be subjected to several hours of waterboarding, a harmless, enhanced interrogation technique, until people are satisfied the location of all his assets and information to incriminate others has been gathered.

Posted by: Supremacy Claus | Jun 8, 2010 1:28:20 PM

I find it interesting that Missouri's advisory guidelines are based on the actual sentences imposed by judges alone without consideration of the sentences handed out by juries, as Missouri is one of six states that practices jury sentencing in noncapital cases. I would think that when a judge is imposing a sentence, he or she would want to know not only what sentences other judges have imposed for a particular crime, but also what the community has said on the matter.

Posted by: Steve K. | Jun 8, 2010 2:35:37 PM

Another issue that is not addressed by the original writer, is that the guidelines(recommended sentences) are not even necessarily for the same offense. DOC has classified offenses into types and groups within those types. While not entirely arbitrary, they can and do skew the " average" senence recc's almost always downward. As observed above, the recc's aremore reflectve of St. Louis andKC, than they do outstate. There are also no adjustments made for cases that result from conviction after trial, cases of multiple counts convicted, or reduced charges being pled to. The system is tremendously biased in favor of non-incarceration dispositions. It has been acknowleged that this is the specific goal of the recommendations to reduce the length and number of prison sentences. This is to circumvent the statutory sentence ranges.

Posted by: Steve S | Jun 10, 2010 4:13:11 PM

BTW, I am a Missouri prosecutor who serves on the advisory committee to the Sentencing Commission

Posted by: Steve S | Jun 10, 2010 4:15:04 PM

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