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For several years I worked as an adjunct professor in the criminal justice department at a local college. At the same time, I was assigned to the Homicide Bureau in the Suffolk County District Attorney’s Office, and frequently I would use examples of actual cases I was handling to help explain certain concepts to my class.

Whenever we would talk about sentencing, and the consideration that should go into deciding what type of sentence is appropriate for different crimes, I would always emphasize that the facts of each particular case are of the utmost importance in determining what the “right” sentence is.

I would give an example of two cases I had prosecuted. Both involved defendants charged with murdering elderly women – one defendant had suffocated his 98 year old mother by tying a plastic bag over her head, and the other had beaten his fiancee’s 91 year old grandmother to death with his bare hands.

The class would all agree that both men deserved to be punished severely. Then I would tell them that one of the men went to trial, was convicted, and subsequently sentenced to 25 years to life in prison. The other man was given the opportunity to plead guilty to a lesser charge and immediately released from jail and placed on probation. When my students expressed disbelief in how this could be fair, I would tell them the thought process involved in deciding whether someone should be incarcerated and how that process helped me decide what the appropriate course of action was in these cases.

I remember learning in a class in law school that there are five reasons to incarcerate someone. All you need is any one of these five to be present, otherwise incarceration is not appropriate.

  1. Specific Deterrence – If someone is considering whether to commit a crime, they will think about the last time they committed a crime and went to jail and will be deterred from committing another crime in the future.

  2. General Deterrence – If someone is considering whether to commit a crime, they will think about others who have committed a similar crime and went to jail, and will be deterred from committing a crime so as to avoid potential incarceration.

  3. Incapacitation (also referred to as Incapacitative Deterrence) – A person who is incarcerated will be unable to be out on the streets committing crimes against others.

  4. Rehabilitation – Someone who has committed a crime, or a particular type of crime, is sick and needs help. While incarcerated they can obtain the help they need via programs available in jail.

  5. Retribution – As a society, we feel the need to see others punished for committing certain crimes.

Here are the circumstances of the two cases I discussed with my class. The defendant who killed his fiancee’s grandmother was 20 years old, about 6’4″ and 240 pounds. His victim was 91 years old, about 5 feet tall and 100 pounds, and needed to use a walker to get around. He beat her to death with his bare hands. His defense was that he was having an epileptic seizure and that he did not intend his actions. Based on the medical records we reviewed, we did not give credit to this defense and due to the circumstances of the crime there was never a plea offer extended to the defendant. He went to trial and was convicted and sentenced to 25 years to life in prison.

The other defendant was 70 years old, living alone with his 98 year old mother. He was her sole caregiver. She was not able to leave her bed, and he would feed her, bathe her, and take care of her. She was blind and had dementia. The defendant had numerous medical issues as well. He was morbidly obese, diabetic, and had several other physical problems. He went to the doctor due to a problem with his hand, and the doctor later wrote him a letter telling him that he had skin cancer. The defendant spoke no English, and when he saw the word “cancer” he thought he was going to die and that no one would be able to take care of his mother. He placed a plastic bag over her head, suffocating her. He then consumed all of the medication that was in his home, as well as injecting himself with all of his insulin. He then cut his own wrists and passed out. Rather than dying, he awoke a few days later and called a family member who then called the police. He was charged with murder for intentionally killing his mother.

After I was assigned the case, I reviewed all of the defendant’s medical records, interviewed his family members, and discussed the facts in great detail with the homicide detective who handled the investigation. Eventually, after thinking about the five reasons for incarceration, I came to the conclusion that none of them applied here.

  1. Specific Deterrence – This was a singular event in this man’s life. He had never so much as received a parking ticket, let alone any prior criminal charges. The circumstances that led to this were so unique that there is no chance he will face this same situation again.

  2. General Deterrence – Given the circumstances of this case, I did not believe that anyone else in the same circumstances would not follow through with their plan in order to avoid incarceration. Therefore, a prison sentence would not be a deterrent to anyone else in the future.

  3. Incapacitation – With his lack of prior criminal history, as well as his medical problems (due to the injection of a large amount of insulin, he went into kidney failure and will require dialysis three times a week for the rest of his life), it was extremely unlikely that there was a need to keep this man locked up to protect others. In the event that he went to prison, he would have spent his entire sentence in the prison hospital.

  4. Rehabilitation – Again, given the circumstances and his motivation for doing what he did, there was no need for him to rehabilitated in any way.

  5. Retribution – This one was tricky. I felt that the unique facts of this crime did not create a situation where we, as a society, had a desire to see this man punished. Reasonable people, of course, may disagree. I’ve spoken about this case with many other prosecutors and defense attorneys (and also non-lawyers). While most agreed with my decision, there are some who did not. Ultimately, I made the recommendation to my supervisor, and I explained my reasoning. My supervisor spoke with the District Attorney, who agreed with me.

Ultimately, the defendant pled guilty to a reduced charge of Manslaughter in the Second Degree, and was sentenced to six months in jail (which he had already served) in addition to five years probation.

To this day, I feel that the decision to release this man was the right one, and I relied upon the five sentencing criteria to make that decision. Even now, as a defense attorney, I still look to those criteria when negotiating with prosecutors or judges to try to get fair resolutions for my clients.

After hearing the facts of these cases, most of my students agreed that a fair result was reached. Sometimes one or two would disagree, and there’s really no wrong answer. Ultimately, the goal of the criminal justice system is treat people fairly, and I believe that was done in these cases.

The Law Office of Glenn Kurtzrock is available to assist you with your criminal case.  We’re available 24 hours a day, 7 days a week.  Call right now for a free consultation at (631) 539-1640, or visit our website at http://www.kurtzrocklaw.com