This is the final in a three-part series Judge Barger has written about sentencing. Read Part I and Part II Judge Barger has written on sentencing.
Judicial discretion is what remains after a judge follows the law, applies the legal standards required for each offense, and considers any plea agreement.
When it comes to sentencing an offender, judges take the following factors into consideration: The appropriateness of plea agreements; the offender’s age; prospects of rehabilitation; mental health status; cognitive ability; the victim; use, abuse or addiction to substances; driving and criminal history; restitution; victim statements; evidence introduced at sentencing; and the offense itself.
The public often views the sentencing process as mystical and secretive because judges are not encouraged or allowed to explain their actions or defend their decision in a case they preside over. Instead a judge prepares a written sentencing order which provides a basis for appeal by either party to the next highest court. At times, this legal practice raises concern about judicial discretion and whether a judge is abusing the process by being too lenient or heavy-handed.
Misdemeanor theft is a good example of a judge’s directives and judicial discretion:
1. An offender with no prior criminal history commits the offense of theft by shoplifting $1.99 worth of food items which are not recovered. This offender works but struggles to support themselves and two children, expresses remorse, and is not likely to reoffend.
Sentencing: Fine of $50.00, $85.00 in surcharges, $1.99 in restitution, a $5.00 administration fee, and exclusion from the store that was victimized. The Court imposes a 180-day deferred imposition of sentence as provided by statute, during which this person must remain law abiding, pay the fines, fees, and surcharges, and follow the sentencing conditions. This sentence will allow the offender to have the charge dismissed and clear their record if they abide by the sentence. Too lenient? Or too heavy handed?
2. An offender commits the offense of theft by shoplifting a handgun and a box of ammo valued at $1,250.00. The person is immediately identified and pulled over by the police after leaving the store. The offender has a violent criminal history including several assaults and has just completed felony probation for violently assaulting a partner and causing serious bodily injury. The partner now has a civil order of protection against the offender and when stopped, the offender is headed in the direction of the partner’s residence. The handgun and ammunition are recovered and returned to the store. The offender hasn’t worked for more than a year, has no prospects for employment, and shows no remorse for his theft or prior criminal behavior against the victim.
Sentencing: Fine of $500.00, $85.00 in surcharges, which are all waived by the Court after a finding of inability to pay, and prohibition from the store that was victimized. Too lenient? Too heavy handed?
While these two individuals committed the offense of misdemeanor theft under vastly different circumstances, the statutory penalty is the same. The penalty for first offense theft of property with a value of less than $1,500.00 is a fine of up to $500.00, $85.00 in surcharges, restitution and a 10% administration fee ($5.00 minimum).
The 2017 legislature removed the possibility of a six-month jail sentence for first offense theft, regardless of the offender’s criminal history or other relevant circumstances. Additionally, as discussed earlier, statutory law and the Montana Supreme Court prohibits a judge from imposing fines, fees, surcharges, or restitution upon a finding of inability to pay. These examples indicate a judge’s limited sentencing discretion.
Not long ago, an experienced Montana judge sentenced an offender for a sexual offense. The judge followed the statutory penalty provisions for the offense and considered the plea agreement which noted that there may be an exception to the mandatory minimum sentencing. The judge reviewed the statutory exception to the mandatory minimum penalty, heard the testimony of an experienced, well-known and highly regarded member of the Montana Sex Offender Treatment Association and other witnesses, and contemplated the pre-sentence investigative report prepared by the Department of Corrections.
Within hours of sentencing, that judge was tried in the court of public opinion and catapulted into State and National news, resulting in an online petition to unseat the judge for his perceived leniency. This petition was signed by tens of thousands of enraged individuals. Yet, there was no indication the judge failed to consider the relevant penalty statutes, the exception to the mandatory minimum sentence, or the testimony of relevant witnesses in framing and pronouncing the sentence. The sentence was not appealed.
In this case, public criticism targeted the judicial branch for statutes enacted by the legislature. The resulting expression of public opinion captured the attention of the legislative branch and put them on notice that there was a demand for change in public policy. Consequently, the 2017 legislators made a change to the statutory exception to the mandatory minimum penalty covering that specific offense.
Every judge will tell you that they make decisions every day that they personally dislike or are frustrated by because they may not believe an applicable law is fair, just, tough enough, or warranted. But judges don’t have the luxury of ruling arbitrarily just because they feel the law should be different. While judges are not required to leave their common sense at the door, they are required to put away all personal thoughts and feelings about the law the minute they put on the robe and step on the bench.
From that point on, judges are required to follow the rule of law. Decisions issued from the bench which are not in accordance with the law constitute an overreach of the judicial branch’s authority vested by Article III of the Constitution and violate the principle of separation of powers.
The legislative branch enacts the laws. The judicial branch interprets and applies the law.
You, as the public and citizens of your respective communities, should expect and deserve a judiciary that is transparent and accountable for adherence to the law. However, beware of quick condemnation regarding the actions of a member of the judiciary without knowledge of the facts and a complete understanding of the governing higher court case law and statutory law.
The judges with the highest integrity step on the bench day after day and issue their decisions without regard for other’s opinions, heedless of potential professional damage, while ignoring the possibility of personal harm. These judges recognize that they are always legally bound to apply the rule of law and abide by their ethical requirement to do so without being swayed by public clamor or fear of criticism.
Hon. Audrey Barger has served as Hill County Justice of the Peace since 2010. Judge Barger has attended judicial trainings including the Montana Judicial Institute at the University of Montana Law School and the National Judicial College in Reno, Nevada. She was born in Malta, raised in Polson, and moved to Havre in 1979 where she obtained a Business Technology Degree with a Minor in Communication from then- Northern Montana College. She grew to love the community, raised her family here, and never left.
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