There’s been a lot of talk about fake news lately.
But what about fake (or at least murky) sentencing?
OK, the sentences handed down by courts aren’t really fake. But the story that they tell is a whole lot different than reality, especially in state court.
In West Virginia, there are two types of sentences.
One is called a definite sentence. That’s when a judge assigns a number for a defendant’s prison term — say, 25 years for a first-degree robbery conviction.
The second type of sentence in the Mountain State is an indefinite sentence. That’s when a judge assigns a sentencing range — say, 1-10 years for grand larceny.
West Virginia lawmakers — think state senators and state delegates — in the past created criminal charges and their potential sentences, including whether they carry definite or indefinite terms.
So grand larceny, drug crimes and conspiracy are among crimes that carry indefinite sentences, while first-degree robbery and access device fraud are among crimes that carry definite terms.
Confused yet?
Well, just wait. It gets even better (or more accurately, worse).
Let’s go back to the robbery example.
The judge imposes a sentence of 25 years from, let’s say, today, which is Feb. 13, 2017. That means Defendant X, as we’ll call him, will stay in prison until Feb. 13, 2032, right? As Lee Corso of ESPN might say: Not so fast, my friend.
If the court doesn’t make a firearm finding (and it’s often part of the plea bargaining process that the state doesn’t seek such a finding), then Defendant X will be eligible for parole after serving a fourth of the term. A fourth of 25 is 6 1/4 years, meaning Defendant X can go before the parole board in May of 2023. Of course, it may be even sooner than that if Defendant X received credit for time spent in jail pending prosecution.
If the court does make a firearm finding, then Defendant X will have to serve at least 5 years or a third of his sentence, whichever is greater. So Defendant X would have to wait 8 1/3 years to get a chance at parole, or until June of 2025. But that’s still a whole heck of a lot better than a release date of 2032, which is what a lot of people who don’t understand the system will think that 25-year term meant.
Now let’s look at Defendant Y, who’s sentenced to 1-10 years for grand larceny. That 1-10 sentence, by the way, is the only choice the judge has to make. Unlike definite sentences, which give judges a chance to pick from a pool of numbers (10 years and up for robbery, 10 years and down for access device fraud), indefinite sentences are totally set by the Legislature. So for instance it’s 1-10 for grand larceny, 1-15 for possession with intent to distribute heroin and 1-5 for conspiracy.
Back to Defendant Y and her 1-10 grand larceny term; she can see the parole board after serving a year. And here’s what’s not-so-true about this sentence: Most defendants will make parole in a year or two.
OK, fine, but what about good behavior credit?
This is something employed by both the state and federal courts (the feds, by the way, don’t have parole) that also tends to obscure the actual time served by a defendant.
Let’s go back to first-degree robbery convict Defendant X and grand larceny convict Defendant Y. Let’s say they just never want to admit they did anything wrong, or they have a lousy criminal history. Whatever the case, the parole board keeps rejecting them when they petition for release.
This doesn’t mean Defendant X will spend the full 25 years in state prison or that Defendant Y will be behind bars for 10 years.
In fact, if they obey the rules while they’re in custody, they likely will receive what’s called day-for-day good behavior credit. To figure this out, simply divide the 25-year sentence for Defendant X in half to come up with 12 1/2 years, or divide the upper limit of Defendant Y’s range (10 years) to come up with 5 years. So Defendant X, sentenced in February 2017, can and most likely will discharge his sentence and walk free in late 2029, when he will reach the 12 1/2-year halfway point. And Defendant Y, also sentenced in February 2017, can most likely will finally walk free in February of 2023.
The feds do it quite differently. In addition to not granting parole, they also are a lot more stingy with good behavior credit. Still, defendants in federal custody can earn 54 days of such credit off their sentence for each year they spend behind bars. So if a federal prison gets a 5-year term, it’s likely that 270 days will be subtracted from it.
Good behavior credit does make sense, simply as an incentive to help corrections authorities manage inmates. Whether it should be day-for-day or 54 days a year, on the other hand, is a debate that probably ought to take place.
And a debate that 100 percent should be held sometime soon is when West Virginia officials are going to stop trying to fool the public with what comes pretty close to being “fake” sentences.
What’s the reason for this type of sentencing structure? Probably decades ago or even longer, political leaders dreamed up such sentences here and in other states to fool the public.
That isn’t necessary in 2017.
West Virginia Code should be rewritten to eliminate indefinite sentences, because hardly anyone serves more than a year or two, whether it’s a 1-10 or a 1-15.
Then for the definite sentences that remain, the state ought to either get rid of the parole board, or require judges to put on the record at sentencing the exact date an individual will first be eligible for parole.
This would better serve the members of the general public, and it would definitely be a better framework to help victims understand what’s happening in their case.
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