How Do Lawyers Get Sentences Lower Than the Legal Minimum?
In situations where a defendant is facing serious prison time and the evidence against them is strong, a defense lawyer's role may shift from attempting to win the case outright to mitigating the potential consequences. In these instances, the focus is on reducing the sentence that the defendant might face. One of the most effective tools that defense lawyers use in this regard is filing a downward durational departure motion. This motion seeks to reduce the length of a prison sentence that would otherwise be imposed under the standard sentencing guidelines. Below, I’ll explain the legal mechanisms and strategies lawyers can use to secure a lesser sentence, even when the law prescribes longer prison time.
Understanding the Sentencing Grid and Downward Durational Departures
Kansas, like many other states, uses a sentencing grid that takes into account both the severity of the crime and the defendant’s criminal history to determine a "presumptive sentence" — the sentence that a judge is expected to impose. This grid gives the sentencing court a recommended range of months for the sentence and whether it should be served in prison or through probation. However, not all cases fit neatly within the grid’s guidelines, and that's where departure motions come in.
A downward durational departure motion focuses on reducing the length of the sentence (e.g., from 10 years to 5 years). To successfully obtain a reduced sentence, the defense must present substantial and compelling reasons why the court should depart from the grid’s guidelines.
How Can a Lawyer Secure a Lesser Sentence?
1. Filing a Downward Durational Departure Motion
A durational departure seeks to modify the duration of the prison sentence, making it shorter than what the law might otherwise require. This motion can be initiated by the defendant’s lawyer or, less commonly, by the judge on their own initiative. When filing this motion, your lawyer must provide the court with a compelling argument as to why you should receive less time in prison than the sentencing grid suggests.
These arguments usually revolve around mitigating circumstances or factors that reduce the severity of the offense or show that the defendant’s culpability is lower than it might appear on the surface. For the motion to be successful, these reasons must be substantial (they must be significant enough to warrant a departure from the standard punishment) and compelling (they must be convincing to the judge).
2. Presenting Substantial and Compelling Reasons
In Kansas, the statute K.S.A. 21-6815 outlines specific reasons that can justify a downward departure, but courts have also recognized various additional reasons through case law. Below are some of the most common and effective arguments lawyers use to secure a reduced sentence:
Statutory Reasons for Downward Departures
Victim’s Aggression or Participation: If the victim in the case was an aggressor or a willing participant in the crime, this can be a strong argument for a lesser sentence. For instance, in State v. Grady, the defendant shot and killed an armed aggressor who had attacked him with a butcher knife. Although the defendant was convicted of voluntary manslaughter, the court found that the fact the victim was armed and aggressive justified a downward departure from the presumptive prison sentence to probation.
Duress or Coercion: If the defendant participated in the crime under duress or coercion, this can justify a reduced sentence. For example, in State v. Wolf, the defendant argued that her participation in a robbery was due to economic duress. Although unsuccessful in her case, Kansas law recognizes duress, especially when it involves physical threats or coercion, as a potential mitigating factor.
Mental or Physical Impairment: If the defendant suffers from a significant mental or physical impairment that affected their ability to exercise proper judgment, a departure may be justified. In State v. Ussery, the defendant’s youth and susceptibility to peer pressure were considered mitigating factors that led to a downward departure. Courts, however, draw a clear line, excluding impairment due to voluntary drug or alcohol use as a valid reason for departure.
Abuse by the Victim: If the defendant or their children have suffered a pattern of physical or sexual abuse from the victim, and the crime was committed in response to that abuse, a downward departure may be warranted. The abuse must be ongoing, and the crime must have been directly related to the abuse.
Slight Harm Caused by the Crime: The amount of harm caused by the defendant’s actions can sometimes justify a lesser sentence if the harm is less severe than what is typical for the crime. In State v. Warren, the defendant was convicted of smuggling drugs into prison, but because the quantity of drugs was small, the court determined that a shorter sentence was appropriate.
Veteran Suffering from Combat-Related Disorder: A defendant who has served in the military and suffers from combat-related disorders, such as PTSD, may be eligible for a reduced sentence if the disorder contributed to their criminal behavior. Although this reason has not yet been heavily tested in Kansas courts, it is now a recognized statutory basis for departure.
Court-Decided Reasons for Downward Departures
In addition to the statutory reasons for departure, courts have also recognized other mitigating factors:
Acceptance of Responsibility: A defendant who pleads guilty early and takes responsibility for their actions may receive a reduced sentence. In State v. Bird, the defendant’s sentence was reduced because he accepted responsibility for his drug addiction and spared the state the cost of a lengthy trial by pleading guilty.
Lack of Threat to Society: If the defendant is deemed to pose little or no threat to society, a judge may reduce their sentence. In State v. Bird, the court found that the defendant’s non-violent nature justified a reduction in his sentence.
Caring for Children and Amenability to Rehabilitation: Courts may grant a downward departure if the defendant is the primary caregiver for children and shows a strong likelihood of rehabilitation. In State v. Crawford, the court granted a downward departure because the defendant was responsible for raising three children and demonstrated her willingness to reform.
Victim or Family’s Statements: Statements from the victim or the victim’s family can influence sentencing. In State v. Heath, the victim’s family’s support for the defendant, who was a close friend, played a role in securing a reduced sentence.
3. Procedural Requirements for a Departure
Even with strong arguments, your lawyer must follow specific procedural steps to ensure a successful departure motion. The Kansas sentencing law requires the sentencing judge to state specific findings of fact on the record to justify a departure. These reasons must be based on evidence presented in court and must be substantial and compelling.
If your lawyer can persuade the court that these reasons exist, the judge can legally impose a sentence that is shorter than what is prescribed by law.
Conclusion
Even when a defendant faces overwhelming evidence and the likelihood of serious prison time, a skilled lawyer can argue for a reduced sentence by presenting substantial and compelling reasons for a downward durational departure. By focusing on mitigating factors—such as the victim’s aggression, the defendant’s mental impairment, acceptance of responsibility, or even statements from the victim—your lawyer can secure a sentence that reduces the time you spend in prison. These departure motions are vital in cases where avoiding prison time entirely may not be possible but limiting the length of the sentence is.
A good defense lawyer knows how to craft compelling arguments and present them in a way that persuades the court to consider alternatives to lengthy prison sentences. The goal is to show the judge that you deserve leniency, even when the law prescribes harsh punishment.