Judge Rudy Reports – Retaliatory Sentencing
By Rudy Serra
Q: I WAS ACCUSED OF A CRIME I DID NOT COMMIT. I have been told that if I plead guilty I will get probation, but if I get convicted at a trial I will get the maximum jail sentence. Can the judge do that?
Answer: No. An accused per-son has a right to a trial. You cannot punish someone for exercising a “right.” To do so is to violate that very right.
This has been a recurring problem in Michigan. The same issue arose in 1997, 2002 and 2007. The court said the same thing each time. A court can-not base its sentence on a defendant’s refusal to admit guilt. Doing so violates the right against self-incrimination. “It is a violation of due process to punish a person for asserting a protected statutory or constitutional right.”
“Courts, including the United States Supreme Court, have sometimes struggled to articulate the precise line between rewarding a defendant for pleading guilty, which is routine in plea bargains, and punishing a defendant for asserting his constitutional right to trial.” It’s okay to be lenient be-cause a person admits guilt, takes responsibility and expresses remorse. It is not okay to punish someone for insisting that they are not guilty.
More than one judge has attempted to enact a “policy” whereby you get the maximum possible sentence if you get convicted at trial. Such policies are always wrong and always unconstitutional.
Part of the job of a judge is to exercise judgment. This is just as true at sentencing as it is at any other phase of legal proceedings. The law requires that sentences be individualized. The crime, the person, the consequences, and all other facts are supposed to be weighed. Sentencing cannot be used to punish a person for choosing a jury trial over a bench trial, or for rejecting a plea bargain, or refusing to admit guilt.
All judges are accountable for knowing and obeying the law of sentencing. In Michigan we have a Judicial Tenure Commission located at 3044 West Grand Boulevard in Detroit. Complaints about unethical or improper conduct by judges can be re-ported there. In some cases, lawyers and judges have a duty to report misconduct that they learn about.
JUDGE RUDY REPORTS is a regular feature in Ferndale Friends. We welcome questions from readers. If you have a legal question or concern, send your question by email to rudy.serra@sbcglobal.net. Advice about specific cases cannot be provided but general legal questions and topics are welcome.
