Last month I talked about the different categories detail what the different state court divisions do. To remind you, each county has a Superior Court with four divisions: Criminal, Civil, Family and Probate. There is also a statewide Environmental Division and a statewide Judicial Bureau. This month I am going to talk about the Criminal Division.

The Criminal Division
The Criminal Division used to be a separate court called the District Court.
With reorganization of courts in 2010, the District Court was renamed the Criminal Division of the Superior Court. Criminal cases are what most people think of when they think of trials. A criminal case almost always involves a written law (called a statute) that makes some activity a crime. The Vermont criminal laws are passed by the Vermont Legislature and are part of a large set of written laws available in a multi-volume set of books entitled The Vermont Statutes Annotated. These are often referred to as “the Green Books” because their covers are green; these are also available online.

The laws are separated by category into what are called “Titles.” Most of the criminal laws appear in Titles 13, 18 and 23. Each section of a law has a number for the title and a number for the section in that title.

For example, the basic law making burglary a crime is in Title 13 and is referred to (or as lawyers call it, “cited”) this way: 13 V.S.A. § 1201. Section 1201 then has subsections defining some of the words used in the law and stating the range of penalties available for violating the law. It also says that someone convicted of burglary can be imprisoned up to 15 years and fined up to $1,000, but if the burglary is into a home, the sentence can go as high as 25 years. If the person burglarizing a home is carrying a weapon, even if they don’t actually use it, the sentence can go up to 30 years in prison.

Now, these are all maximum sentences, not mandatory ones. So when you read in the paper that someone is facing a potential of 30 years in prison, it doesn’t mean that is necessarily the sentence they will get. In fact, it is rare that someone gets the maximum sentence available. There are a few crimes where there is a mandatory minimum sentence, such as some DUI cases and sexual assault cases. That means the judge may have discretion about how long the upper end of the sentence should be, but has to impose at least the minimum stated in the law. For example, for a second DUI conviction there is a mandatory 60 hours in jail or 200 hours of community service; for sexual assault there is a mandatory minimum of at least three years in jail.

Here’s how sentencing works. Everyone charged with a crime (called a “defendant”) has a right to a jury trial, and that means the jury decides guilt or innocence. However, in most cases the jury plays no role in deciding the sentence—that is up to the judge. The maximum possible sentence is the one stated in the statute, but there are many things to consider when deciding a fair sentence.

We look at the person’s previous criminal record: is this the first time they have ever been convicted, or the fifteenth time? We look at whether there was any violence involved. We look at the reasons the person committed the crime: a different sentence might be appropriate for a person who stole to feed their hungry children as opposed to someone who stole because they were angry at the person they stole from. We also look at whether the person will be a danger to the public if they are not imprisoned for some period of time; whether they need mental health counseling or drug/alcohol treatment; whether they need to be penalized as a lesson to them; whether they need to be penalized so others will see that it is not worth doing this sort of crime. We also consider the views of any victims of the crime.

The options for sentencing include jail, probation and fines. So even though there is a maximum of 15 years in jail for a burglary into a building that is not a residence, a defendant might get only probation or a shorter jail term, depending upon all the factors that apply to his or her case. A 19-year-old burglarizing a shed to steal a shovel to dig his car out of a snow bank, who has never been in trouble before, is not likely to go to jail. A 45-year-old who has ten prior convictions for burglary who broke into a bar to beat up the owner and steal $20,000 is probably going to jail for a while. The charges are the same, but the sentences can be very different.

When someone is put on probation, it means that they will have a probation officer whose job it is to supervise them to try to keep them out of trouble and assure that they follow whatever rules (“probation conditions”) the judge imposed. For a young person with a drug problem, the probation conditions might include getting drug counseling, staying in school, not using drugs (and being tested randomly to make sure of that), and not getting any new criminal charges. The idea of probation is to try to address the problems that led the person to commit the crime. Probation can also be a way to have the person do something positive to make up for the crime, such as volunteer work or a letter of apology.

Unlike a probation sentence, when a judge imposes a jail sentence she has no authority to order the defendant to do things like counseling in jail. Instead, it is up to the Department of Corrections to review the defendant’s crime and history to decide what they need in the way of counseling or educational programs while in jail.

Fines are also an option if a person has enough money to afford a fine. The money from fines goes to the state’s overall budget, not to the courts. Judges generally will not impose a fine on someone who is already struggling financially. That being said, there are some fees imposed by the Legislature that generally get imposed on everyone who is convicted of a crime, and those are mandatory even if the defendant really can’t afford it. Those are called “surcharges,” and the amount that applies depends upon the crime. For example, there are some special surcharges that apply to DUI cases, but not to other cases.

There is one other financial order that can be imposed, called “restitution.” This applies if someone took money or caused other financial harm to the victim of their crime—for example, if the victim was injured and incurred medical bills not covered by insurance. In this situation, the judge will generally order the defendant to repay the money to the victim, even if it will take a long time to do it. There is also a state restitution fund that sometimes can repay the victim right away, with the defendant repaying that fund over time.

All of these different sentencing options can be used together, too. For example, a judge can sentence someone to spend a year in jail, then be on probation for three years, pay a $500 fine, and pay the victim $1,000 in restitution. Another important thing to know is that in Vermont, judges imposing just a jail term have to impose a minimum sentence and a maximum sentence. That means a judge cannot impose a set 5-year jail term, but must instead impose a 1-5 year term, or a 4-5 year term, or a 4-year-and-10 months to 5-year term.

When the defendant actually gets out of jail is sometimes a complicated calculation that depends upon Department of Corrections rules and various laws about things like credit for good behavior—and those rules change over time. Often a defendant who has behaved well in jail can be released after serving her minimum sentence if the Department concludes that she is not a danger to the public and has an appropriate residence to go to. For example, for someone with a history of alcohol abuse who assaulted someone, this might mean a home where the victim is not living nearby and no one else in the home drinks alcohol. Many people are released from jail before they have served the maximum sentence the judge imposed. However, if a defendant is behaving badly or refusing to participate in a program the Department of Corrections feels he needs before being released, he may not get out until he serves the whole sentence.

Any discussion of criminal cases would not be complete without talking about plea bargains. Most criminal cases in Vermont and everywhere else in the country get resolved with plea bargains instead of trials. These are agreements between the prosecutors and the defense attorneys (or in some cases defendants who have no attorney). The agreement usually is that the defendant will plead guilty to the crime, and both sides will ask the judge to impose a specific sentence. Sometimes the deal will include the prosecutor lowering the charge in exchange for the defendant pleading guilty. Sometimes the deal will not be to an exact sentence, but to a range. In other words, the prosecutor might agree that, although the maximum sentence for the crime could be 10 years in jail, they will not ask the judge for more than eight years.

A judge does not have to agree to the deal the parties propose in the plea agreement, and sometimes the judge will say no. This could be because she believes the proposed sentence is too harsh or too lenient or that it does not adequately address the victim’s concerns. One thing the judge does have to do before accepting a plea agreement is to have a dialogue in the courtroom with the defendant to make sure he is actually admitting that he did the crime. This is required by a specific rule, Rule 11 of the Vermont Rules of Criminal Procedure, and convictions can be reversed if the judge fails to do this properly. The idea is that we do not want people pleading guilty if they did not do what they are accused of doing. We need to be sure they understand what the state would have to prove to win at trial, and that they are sure this is what they want to do.

However, a person can also enter what is called a “no contest” plea, where they deny that they did the crime but agree that they would rather take the sentence that is being proposed than go to trial. If a defendant does this, she still has a conviction for the crime. Why would someone do that? Sometimes it is because the person decides that the risk of going to trial and getting a more severe sentence is not worth it, and the lower charge and lower sentence being offered is a safer bet. Sometimes it is because the defendant just wants the whole case over with and does not want to have to come back to court for a trial and all the steps of the case that precede a trial.

There are many philosophical debates about whether plea bargaining is a good or bad thing, but it is always up to the defendant to choose whether to agree to such a plea or go to trial. Everyone in Vermont is entitled to a jury trial (with 12 jurors) for any criminal charge, although they can waive that right and ask the judge to do the trial without a jury. If the sentence for the charge is potentially going to be more than a fine, defendants who are below a certain income level are entitled to have a lawyer appointed to represent them for a very low fee. The charge is often as low as $50 for the whole case. You may have heard news stories about cases in other states in which lawyers with no criminal law experience were appointed to represent people in such situations and did a very poor job. Thankfully, in Vermont we have experienced criminal defense attorneys, called “public defenders,” who do this full time.

There are a lot of steps in criminal cases that I haven’t touched on here, such as arrests, citations, bail, conditions of release, arraignments, motions, jury selection, appeals, and post-conviction relief petitions. Those will have to wait for another column!