ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, October 6, 1996 TAG: 9610070077
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
A STUDY OF VIRGINIA COURTS indicates greater leniency in Roanoke Valley courts. But area legal officials tell a different story.
Does the Roanoke Valley have the most lenient judges in the state?
Not necessarily, even though a study found that the 23rd Judicial Circuit - Roanoke, Roanoke County and Salem - has the highest percentage statewide of felons who received less punishment from judges than was recommended by sentencing guidelines.
In 19.4 percent of the cases, or about one of every five felons sentenced since Jan. 1, 1995, the six Circuit Court judges of the Roanoke Valley found mitigating reasons to go below the guidelines, according to a report by the Virginia Criminal Sentencing Commission. That was the highest rate among the state's 31 judicial circuits, which had an overall mitigation rate of 11 percent.
But the numbers can be misleading, commission director Richard Kern warned.
"You can't leap to the conclusion that the judges [in the Roanoke Valley] are somewhat more lenient as compared to the statewide average," Kern said.
The types of cases that appear most frequently in a particular area could skew the numbers, he said. For example, a circuit that has a large number of small-time drug dealers might have a high mitigation rate, even when its judges are handing down stiff sentences for violent offenders, who represent only a small portion of the total caseload.
And the rate at which judges use sentencing alternatives such as boot camp, drug court and intensive probation - which can be more demanding on offenders than a short prison term - could also make the mitigation rate appear artificially high, Kern said.
Those variables were not included in the commission's study. Until more details are known, Kern said, "we have to be careful in looking at the data and not generalize that it reflects harsh sentencing practices or lenient ones in certain areas."
The commission's study, which examined 17,972 cases since parole was abolished effective Jan. 1, 1995, found that judges across the state sentenced felons to terms within the guidelines 75.1 percent of the time.
With a compliance rate of 65.2 percent, the Roanoke Valley was the second lowest circuit in the state.
The lowest compliance rate, 57.8 percent, was in the 29th Circuit, which includes Buchanan, Dickenson, Russell and Tazewell counties in far Southwest Virginia, the report found. But in that circuit, the compliance rate was low because the judges sentenced defendants to more time than was recommended by the guidelines in 31.9 percent of the cases - the highest aggravation rate in the state.
Although the Roanoke Valley had the state's highest mitigation rate, judges here sentenced defendants to more time than recommended by the guidelines in 15.4 percent of the 738 cases examined in the report. That's slightly higher than the statewide average.
"These figures don't cause me any great alarm," Roanoke Commonwealth's Attorney Donald Caldwell said. "On a case-by-case basis, I can have a lot of disagreements with the judges. But generally, I feel like they're doing the right thing."
Caldwell said his greater concern was not with the commission's study, but with the sentencing guidelines on which it was based.
Since 1991, Virginia judges have been encouraged to follow sentencing guidelines in most felony cases. The guidelines - which have a range that varies depending on a defendant's prior record, the nature of the crime and other factors - are based on a statewide average of sentences for similar crimes over the past five years.
The guidelines were designed to correct disparity in sentencing by giving judges a historically based middle range of punishment that reflects how certain cases were treated throughout the state.
A common criticism among prosecutors is that the guidelines don't call for incarceration often enough. But Caldwell said he is more concerned about a system that applies a standard formula to cases that should be judged on their individual facts.
For example, he said, the guidelines make no distinction between a malicious wounding that involved a drunken victim who was somewhat at fault in an argument and one in which the victim was attacked at random by a stranger.
"The search for justice is not satisfied by crunching some numbers and saying, `Gee, we're uniform, so therefore we must be just,''' Caldwell said.
"In my opinion, the judges have abdicated their autonomy when they bought into this sentencing-guideline concept, and in a sense, the legislature has abdicated their duty to the citizens by allowing this faceless, bureaucratic sentencing commission to essentially decide what justice is in Virginia."
Caldwell said he often does not oppose sentences that go below the guidelines, but he wishes the judges were more willing to go above the guidelines when a harsher punishment is merited by the facts of the case and the background of the defendant.
Prosecutors, defense lawyers and judges all agree that, in some cases, the guidelines are meaningless.
One such case would be that of Michael Obremski, the so-called "Raleigh Court stalker" charged with making dozens of obscene and threatening telephone calls to young girls. When Obremski came up for sentencing last month in Roanoke County, the guidelines recommended that he serve no jail time.
Judge Roy Willett ignored the guidelines, which in that case were based on incomplete data, and sentenced Obremski to 15 1/2 years in prison. "We didn't even argue the guidelines, because they weren't very helpful," said Tom Wray, a Roanoke lawyer who represented Obremski.
Given cases like that, Caldwell said, it's hard for him to be too critical of the judges for not following the guidelines.
Willett, who is the chief judge of the 23rd Circuit, agreed that numbers in the sentencing commission's report should not be taken at face value.
"I think the judges here simply try to handle each case individually, and statistically the information is probably misleading," Willett said. The other judges in the 23rd Circuit are G.O. Clemens, Robert P. Doherty, Richard Pattisall, Diane Strickland and Clifford Weckstein.
Samuel Johnston, a Campbell County judge who serves on the sentencing commission, said one reason the statistics should be viewed with caution is that they don't take into account alternative sentencing, such as boot camp or intensive probation.
"The urban areas probably have more options available for alternative sentencing, which we are encouraged to use, especially for nonviolent and nonrepeat offenders," Johnston said.
Roanoke recently received funding for a day-reporting center, one of six such facilities in the state that allows judges to sentence defendants to intensely supervised probation. The city also has the only drug court in the state, which allows judges to send addicts and small-time dealers through a year of treatment instead of to prison.
An area that uses sentencing alternatives may have a high mitigation rate, Kern said, when in fact the programs require more effort of defendants than what would be required during a short prison term.
"On paper, it looks like leniency," he said. "But in reality, many inmates would rather just pull their time and not be bothered" by programs such as boot camp.
Several lawyers who regularly handle criminal cases in Roanoke and surrounding areas said they have not noticed a difference in the way judges impose sentences from one area to another.
"I've handled felonies in all of the Circuit Courts, and I don't see the deviation being that great," Roanoke lawyer Tony Anderson said. "I think luckily so, most of our Circuit Court judges sentence defendants based on the individual merits of the case."
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