In Alabama, as well as throughout the country, there tends to be a blind and growing fear of sex offender recidivism. It’s one of the primary reasons that the mean prison sentence for a child pornography offender increased from 36 months in 1994 to 110 months in 2007.
Birmingham sex crimes defense lawyers know, while it’s important to work aggressively to avoiding conviction in the first place, there are some cases for which the focus of counsel must shift to reducing the sentence through whatever legal options are available.
One of the best tools we have is the presentation of mitigating circumstances. This does not excuse the crime or make it so that the offender won’t have to serve punishment. However, it will give the court a better understanding of the why, and when done effectively, can sometimes result in a lighter sentence.
Some common examples of mitigating circumstances might be having a minor role in the crime, having a lack of a criminal record, being a contributing member of society, suffering from addiction, expression of remorse and difficult personal history.
These factors may not absolve you of responsibility, but they can serve to sway the court in your favor when it comes time to sentencing. So important is the right to present mitigating circumstances, that the Kansas Supreme Court recently reversed a sentence and remanded a case back for rehearing when one offender was not given the opportunity.
In State v. Haney, the defendant was charged with numerous sex offenses involving his teenage stepdaughter. He agreed to enter a plea of nolo contendere (also known as “no contest”) in exchange for dismissal of other charges and a recommendation for a shorter sentence.
Prosecutors had recommended that he receive a total of 18 years on the two counts. The agreement allowed the defendant to ask the court for a reduced prison term, but he couldn’t seek a dispositional departure to probation. In other words, he couldn’t ask to have some of the prison term converted to probation time.
At the time of the plea hearing, the defendant asked the district court to approve funding for an expert to conduct a sex offender evaluation that would help to support his motion for a downward departure. He had already been approved by indigent services. He believed that expert testimony could help establish that these acts were an aberration and that he posed no risk to the community at-large for future offenses. Such a report would also indicate whether there were elements in his past that contributed to the offense or other mitigating circumstances. The court denied his request, indicating that this information would only be relevant to determine the kind of treatment he would receive if placed on probation – which was not an option in his case.
The judge refused, and he was sentenced to 18 years, per the prosecution’s recommendation.
The defendant appealed, arguing that the evaluation would have provided the court with mitigating evidence supporting a lesser sentence. The court of appeals found that the court had abused its discretion in failing to allow the opportunity to present mitigating evidence, but found the error harmless.
The state supreme court disagreed. The conviction stands, but now he will have a chance to present mitigating circumstances that could ultimately result in a reduced sentence.