I have heard people talk about a person getting lucky to get a departure in a sentencing in a criminal case. I think I have some idea, but what exactly is meant by that term? I appreciate your clarification.
A departure is typically sought in a felony criminal case. Felony cases are subject to what is called the Kansas Sentencing Guidelines. Although called “guidelines,” the rules are actually highly persuasive on a judge in a felony sentencing, if not mandatory under certain circumstances.
There are generally two types of guidelines: one for non-drug cases and one for drug-related matters. Visually the guidelines work like a grid. In one column, one must consider the nature of the felony—i.e. what level it falls under. A level 1 is the worst type of felony and on down.
Then, falling in the other column, a judge must consider the defendant’s criminal history score. An “A” is the worst possible score. From a client’s perspective, this is a situation where getting an “F” is better than getting an “A.”
Once both the criminal history score and the level of felony are determined, one can determine where on the grid the person falls. There are essentially three categories a defendant could fall under on the grid: presumptive probation, presumptive prison and borderbox. For ease of explanation, a borderbox determination could be thought of as a gray area in between presumptive prison and presumptive probation.
When a defendant falls into a presumptive prison or even a borderbox category, that is typically when a defendant files a departure motion. The two types of departures are durational and dispositional. A durational departure motion would seek to change the length of the term the guidelines would impose—i.e. modifying the length of the prison or probation term.
With a dispositional departure, on the other hand, the defendant would ask the judge to “depart” from the guideline placement of prison to that of probation.
Getting a departure motion granted is oftentimes not an easy task. The defendant must show a substantial and compelling reason why the judge should depart from the guidelines. Consequently, you sometimes may hear someone say, “Wow, he was lucky to get probation because he should have gone to prison.”