How Punishment Works in Tennessee
To a person who has never been through the criminal justice system, it may seem like a maze. There are many choices, and each has its merits and problems. First, the accused needs to know what those choices are. Then the lawyer shows him what makes the most sense in this case. Most cases mainly fit into either a real fight about guilt or innocence or a real struggle to make sure the punishment is fair. Many cases have both components at issue. Here is a brief overview of the "maze."
General Sessions - Most cases begin in General Sessions Court. Once a reasonable bond has been set, you will be issued an arraignment date. On that date, the Judge will inform you of the offense you are charged with and allow you reasonable time to hire an attorney. Your next court date is called an Attorney Setting. At this time, you need to have an attorney hired if you can afford one. Once you have an attorney, your case can be resolved in one of four ways. In General Sessions, you could have a negotiated plea, bench trial, preliminary hearing, or a dismissal. Every case is different, and the outcome is dependent on the facts of your case. I always wanted to be a criminal defense lawyer; that is all that I do. I spend the time to counsel my clients, negotiate their cases effectively, or prepare the case for trial. I like my clients, and I like helping them solve their problems. Prosecutors, judges, and juries can sense this; that makes the difference.
Grand Jury Indictment - A person can demand that their case is presented to the Grand Jury. If you chose to waive your case to the Grand Jury, the Grand Jury will investigate your offense. An indictment is an accusation in writing presented by the grand jury that charges the person with a criminal offense. An indictment cannot be found without at least 12 grand jurors agreeing to indict.
Criminal Court (Circuit Court) - Once you have been indicted by the Grand Jury, you will then be assigned a Criminal Court and receive a Bond Arraignment date. On that date, you will be asked to either hire an attorney if you can afford one or you will be appointed an attorney. In Criminal Court (Circuit Court), you now have access to documents concerning your case. At this level, you may have a bench or jury trial or have a negotiated guilty plea.
Offense Ranges - A person's offense range varies between mitigated to career offender. At sentencing, a judge will determine what range offender the defendant is (based upon the criminal record of the convicted person) and will sentence him according to that range. A mitigated offender is an individual who has no prior offenses on their record. A standard offender, Range I, has zero to one prior offense. A multiple offender, Range II, has two to four priors. A persistent offender, Range III, has five or more priors. A career offender has multiple prior felonies of varying classes. Depending on what class of felony your criminal charge is, and what offense range you are convicted on, the judge will determine the range of years that one could be sentenced in a case. Put simply, the seriousness of the offense figures in with the seriousness of the person's record to determine the sentence under the factors set out under Tennessee law.
Felony Class - The felony range is between an 'E' felony all the way up to an 'A' felony. An 'A' felony can carry from 13.5 years to 60 years in jail. A 'B' felony can carry 7.2 years to 30 years in jail. A defendant cannot receive probation on an 'A' or 'B' felony. A 'C' felony can carry from 2.7 years to 15 years in jail. A defendant can receive probation on a 'C' felony. A 'D' felony carries from 1.8 years to 12 years in jail. A defendant can also receive probation on a 'D' felony. An 'E' felony carries .9 years to 6 years in jail, and the defendant could receive probation.
Sentencing - When determining a sentence, a judge will determine what felony class the defendant was charged with and what is the offense range of the defendant. Then the judge will determine how many years the defendant may receive. In sentencing, the judge has the option to sentence the defendant to jail time, probation, or diversion.
Diversion - Diversion is a program that is only available to first time offenders. This is a type of probation that will allow the criminal charge to be expunged of the defendant's criminal record once the defendant has satisfactorily completed all the terms of the probation.
Probation - A defendant could receive a suspended sentence in lieu of jail time. That means the defendant will be on probation for a determined amount of time. The defendant will have to follow all of the orders by the court and the probation officer in order to successfully complete probation. If the defendant violates his probation, the court will have a hearing in which it will either make the defendant serve his jail time or re-probate him/her.
The Judge will examine several factors in a hearing to determine whether or not the defendant should receive probation. The factors are the nature of the offense, deterrent effect on the community, the need to protect the community, rehabilitation of the defendant, the defendant's prior criminal record, mitigating factors presented by the defense attorney, and enhancement factors presented by the state.
Consecutive/Concurrent Sentence - If a defendant has multiple charges, he may be sentenced to concurrent or consecutive time. If a defendant receives a concurrent sentence, then he/she will serve all their sentences at one time. If a defendant receives a consecutive sentence, then he will serve a sentence on one charge and once he completes that time then he will begin to serve the sentence on the next charge.
Example: The Defendant has two counts of Aggravated Burglary.
The Defendant was sentenced to 3 years concurrent on Aggravated Burglary.
The Defendant will serve only three years total on the charges.
The Defendant was sentenced to 3 years on Aggravated Burglary, consecutive to 3 years on the other Aggravated Burglary case.
The Defendant will serve six years total on the charges.
Three Strikes - Certain violent offenders who repeat violent offenses face life in prison without parole. For certain extremely violent offenses, it only takes two strikes. It is worth noting that some of these same offenses can trigger a jury hearing to decide whether life, life without parole, or the death penalty is appropriate in a murder trial.
Death Penalty - If a defendant is charged with First Degree Murder, he could be facing the death penalty, life without parole, or life with parole. In these types of cases, certain aggravators have to be found in order to determine if the defendant should face the death penalty. The jury will determine if the defendant should or should not receive the death penalty if the defendant is found guilty at trial.
Federal Sentencing - The overriding principal and basic mandate of federal sentencing is laid out in Section 3553(a) requires District Courts to impose a sentence "sufficient, but not greater than necessary," to comply with the purposes of sentencing as set forth in Section 3553(a)(2):
(a) Retribution (to reflect seriousness of the offense, to promote respect for the law, and to provide "just punishment")
(c) Incapacitation ("to protect the public from further crimes")
(d) Rehabilitation ("to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner")
Neither the statute nor the Booker/Fanfan progeny suggests that any of these factors are to be given greater weight than the others. The appropriate factors for the Court to consider are outlined in Section 3553(a):
(1) The nature and circumstances of the offense and the history and characteristics of the defendant
(2) The kinds of sentencing available
(3) The guidelines and policy statements issued by the Sentencing Commission
(4) The need to avoid unwarranted sentencing disparity
It All Comes Down to Advocacy
The factor above that allows the most advocacy is the one that mandates the sentencing judge to consider the "nature and circumstances of the offense and the history and characteristics of the defendant." I always wanted to be a criminal defense lawyer; that is all that I do. I spend the time to counsel my clients, negotiate their cases effectively, or prepare the case for trial. I like my clients, and I like helping them solve their problems. Prosecutors, judges, and juries can sense this; that makes the difference.