Guidelines pose problems

Topeka Capital-Journal, The, Jun 10, 2007 by James Carlson

By James Carlson

THE CAPITAL-JOURNAL

The Kansas sentencing guidelines, at the center of a controversy surrounding Shawnee County District Court Judge Matthew Dowd, have been around since 1993 when they were enacted to bring back "truth in sentencing."

That philosophy, the buzzword of the time, was meant to reduce variation in sentencing by judges and to allow corrections officials to better predict prison population.

More than 10 years since the changes, the guidelines have produced a "mixed bag" of results, according to Kansas Secretary of Corrections Roger Werholtz.

Controversy

The current debate over Dowd isn't about the sentencing guidelines but about how the judge departed from them.

He granted probation on May 25 to Orlando Paul Cisneros, 38, who was convicted by a Shawnee County jury on 17 charges of rape and sodomy involving a 14-year-old girl. The ruling departed from guidelines recommending Cisneros serve 13 years in prison.

Another recent case drawing attention involves Dowd's placement of Federico Mendoza, 34, on probation for soliciting sex from what he thought was a 13- or 14-year-old girl found via an Internet chat room. He could have been sentenced to 12 years in prison.

Sentencing grid

The Kansas Sentencing Guidelines Act of 1993 established presumptive sentences based on the severity of the crime and the criminal history of the defendant.

In the early 1990s, many wondered about the wide-ranging sentences of some crimes. Helen Pedigo, executive director of the Kansas Sentencing Commission, said an individual could be sentenced from two to 10 years in prison and with good behavior could be released after only one year.

"Victims and the general public never thought they would see that individual out so soon," Pedigo said.

Werholtz said sentencing also tended to discriminate based on race and geography, and the variations in prison time made it difficult to predict what the prison population would be.

"We had judges varying wildly in their sentences," said Sen. Pete Brungardt, vice chairman of the Joint Committee on Corrections and Juvenile Justice Oversight.

A sentencing commission was formed by the Legislature, and their recommendations formed the law that passed through the Legislature in 1993.

The sentencing grids have the criminal history of the defendant listed along the top and the severity of the crime committed along the side.

The two variables meet in the middle at a box that has the presumptive sentence. Certain boxes are presumptive probation, and others are presumptive prison time.

The effect of the changes, if following the grid, was to increase the penalty for more serious crimes and decrease the penalty for lesser crimes, said Don Troth, Shawnee County court administrator.

Substantial

The grid's intent was to "limit the discretion of judges," according to a release put out this week by the Topeka Bar Association Board of Directors.

The guidelines do include exceptions to the presumptive sentences. A judge may depart from the grid, according to statutes, if there are "substantial and compelling" reasons for the departure. By law, the judge must state on the record the reason for departing from the sentencing grid.

Dowd said following the case that Cisneros suffered from "massive depression" and he had a history of steady employment.

"I felt he had a good chance of rehabilitation, based on family support," Dowd said at the time. "Plus, I felt there was no permanent, severe damage to the victim. She said that, too."

Mixed bag

Werholtz said the guidelines have been positive but aren't perfect.

The grid has increased gender, racial and geographic neutrality in sentencing, he said.

The downside?

"It still doesn't prevent judges from departing," he said. "You've traded one set of problems for another."

James Carlson can be reached

at (785) 295-1186

or james.carlson@cjonline.com.