Ep. 23 Criminal Sentencing

At the end of the judicial process, a judge is tasked with sentencing the convicted person to a penalty or sanction. The process of sentencing can be complex and have many layers that a judge must work through and research before making a decision on final punishment. In this episode, Judge Steve Sword of the sixth judicial district, Judge Jim Goodwin of the second judicial district and Judge Zack Walden of the eighth judicial district in Tennessee. 

Barbara Peck is the host and this episode is intended for all audiences. 
 
Produced by Nick Morgan

Transcript

00;07;34;25 - 00;08;02;06
Host
Welcome to Tennessee Court Talk. I'm your host, Barbara Peck. And today we were talking about criminal sentencing. This podcast is intended for all audiences. My first guest is Judge Steve Sword of the sixth Judicial District, which covers Knox County. My second guest is Judge Jim Goodwin of the Second Judicial District, which covers Sullivan County. And my third guest is Judge Zach Walden of the Eighth Judicial District, which covers Campbell, Claiborne, Fentress, Scott, and Union counties.

00;08;02;13 - 00;08;04;01
Host
Welcome to you all.

00;08;04;03 - 00;08;06;16
Judge Sword
Thank you. Good morning. Thanks for having us.

00;08;06;18 - 00;08;13;11
Host
So let's talk about criminal sentencing. Judge Sword at what point are we going to have a sentencing hearing in Tennessee?

00;08;13;13 - 00;08;22;20
Judge Sword
So you're you'll have your sentencing hearing after there's been a conviction of a criminal offense. And that can either be through a plea or a trial by jury. And the jury found him guilty.

00;08;22;23 - 00;08;25;13
Host
And what is going to happen at the sentencing hearing?

00;08;25;15 - 00;08;53;10
Judge Sword
You know, the the biggest misconception I think the general public has about sentencing is that the judge just listens to the facts and determines what do I think is the appropriate punishment for this offense. And that is, completely incorrect. The legislature determines what the appropriate punishments are for offenses, and they give us guidance, to help the judge determine where within certain ranges of, punishment should fall, and also the manner in which it should be, served.

00;08;53;12 - 00;09;11;16
Judge Sword
And so really, the role of the judge is to look at the law first, and then you look at what that person is convicted of, the facts of that particular case. And then you determine what a just sentence is in accordance with the law, not in accordance what your personal beliefs are or what you think the fair and right thing is.

00;09;11;16 - 00;09;13;27
Judge Sword
And that's a big misconception a lot of folks have.

00;09;14;02 - 00;09;19;22
Host
Judge Goodwin about what about in your court. When does a sentencing hearing typically happen? How far away from a conviction?

00;09;19;25 - 00;09;29;29
Judge Goodwin
If they're in custody, it's within 45 days or supposed to be 45 days if they're out of custody? Probably within 60 to 90 days.

00;09;30;01 - 00;09;45;23
Host
Okay. And it's a separate process and a jury trial. So first, you've had a jury trial or a bench trial, I guess, but most likely a jury trial. The jury has convicted, and now we're having a sentencing hearing. So what happens in a sentencing hearing? Are there witnesses? Are there is their statements.

00;09;45;25 - 00;10;08;04
Judge Goodwin
Most people who are listening, if you're not really familiar, you're probably thinking of why rule rules that take 45 days? Why does it take 60 to 90 days? The thing is, the Tennessee code requires that we have a sentencing pre-sentence report in front of us. This prepared that gives us the facts of the case, defendant's history, criminal history, social history, work history.

00;10;08;04 - 00;10;33;03
Judge Goodwin
So we know all these things. And then we take proof. Excuse me? We take proof and hear from, the defense and from the state, and they can put on any testimony they want. The defense has the defense that has the burden. If it's a plea agreement, if it's a trial, then the state has the burden to prove what the said it should be.

00;10;33;06 - 00;10;46;06
Host
Okay. So let's talk about plea agreements, because most cases actually are a plea agreement. And most cases do not go to a jury trial. So is the sentence always part of the plea agreement or is it sometimes is and sometimes not.

00;10;46;09 - 00;11;08;27
Judge Walden
Sometimes it is and sometimes it isn't. So a lot of the vast majority of our pleas, the the sentence is agreed to, however, from time to time they will ask the court for what we call wide open sentencing, which means there's no agreement as to the or sentence at all, either the length or the manner of service, so that that's up to sometimes they just have specific questions.

00;11;08;27 - 00;11;25;28
Judge Walden
You know, we agree that the defendant should be sentence is range one, which means they have no criminal history. We agree that, sentences shouldn't run consecutively, but we need the court to determine the amount of time or sometimes just whether it's probation or incarceration, or sometimes it's just about whether to grant judicial diversion.

00;11;26;00 - 00;11;34;17
Host
And what if if you're the judge and you see a plea agreement and you see that they've agreed upon a sentence and you are questioning that, what happens then?

00;11;34;19 - 00;11;51;06
Judge Walden
Well, I've been on the bench all of 9 or 10 months now. I've, I've not had a plea agreement yet where I didn't approve of it. There have been a time or two. I've had a question. I've asked that question. You know, something. Something looks like something has been greatly reduced. Or just the punishment doesn't fit the crime.

00;11;51;06 - 00;12;09;15
Judge Walden
So to speak. You can ask the parties those questions. However, you have to realize at the time you're taking a plea. Most of the time, the judge knows next to nothing about the case other than what the defendant is charged with. Sometimes if you recognize the defendant from prior appearances in court, maybe you happen to remember a little bit about their criminal history.

00;12;09;18 - 00;12;30;09
Judge Walden
But the reality is the district attorney and the defense lawyer know infinitely more about the facts of the case. What's what evidence the state really has to prove the case. And sometimes that's a big issue. What things get reduces. The state knows that they're going to have problems proving someone guilty at trial. So so you see it, but you're really in a position where you know the least amount of information.

00;12;30;12 - 00;12;33;27
Judge Walden
So you need to be really careful if you're going to disapprove of a plea agreement.

00;12;33;29 - 00;12;55;00
Judge Sword
That's a really good point, Zach. I roll 11 gives us really unfettered, discretion in rejecting plea agreements. So we want to the, you know, defendant doesn't have a right to a plea agreement. They have a right to determine if they're going to plead guilty or not guilty, and they have a right to trial by jury. But, if justice demands that the court reject a plea agreement, the court has that discretion.

00;12;55;00 - 00;13;16;01
Judge Sword
But that's exactly right. It's hard for us to determine, when it's a, a plea before us. There's very little that we know. The parties know the cases much better than we do. Sometimes, only a couple times in my career where I felt like the agreement would, result in an injustice based upon the way it had been announced.

00;13;16;01 - 00;13;19;14
Judge Sword
But that's rare. It's just hard for us as judges to make that determination.

00;13;19;14 - 00;13;29;05
Host
What about victims? And should victims know? Is that part of what the Da is supposed to be doing? Is informing them that it has been accepted or not accepted, and sort of what is the role there?

00;13;29;08 - 00;13;55;08
Judge Goodwin
Several years ago, Tennessee had a constitutional amendment that gave victims certain rights, and one of those rights is to be informed, as to what plea agreements are, their terms, they'd be given a chance to come to court and then express their pleasure or displeasure, with that plea agreement. Now, they don't have the right to direct the lawyer and say, and demand a lawyer.

00;13;55;08 - 00;14;03;16
Judge Goodwin
You can't do that, or you have to do this, but, but they absolutely have a right to be heard. They have a right to be in court. They have a right to testify.

00;14;03;24 - 00;14;24;23
Judge Walden
And I think that goes to another misconception. The district attorney's office is not the lawyer for the victims. They are the lawyer for the state of Tennessee. And sometimes there there are disagreements. And all of our district attorneys have victim coordinators who do great jobs. But they they should be setting those expectations of what sentences could be and should be.

00;14;24;26 - 00;14;42;11
Judge Walden
And they have to balance not only how a victim feels about the case, but it's more than just an emotional decision when we're when we're making these legal determinations that the Da has, has a duty to argue what's appropriate for purposes of justice, not just how a victim feels about that particular case.

00;14;42;15 - 00;15;06;09
Judge Goodwin
And along those lines, in that victim, not a victim thing, but in that pre-sentence report that I talked about, there is a section for victim impact, and the victim has a right to fill that out. Get that in the pre-sentence report. But the one thing, that the trial judge cannot do is we cannot substitute our judgment for someone else's.

00;15;06;11 - 00;15;36;10
Judge Goodwin
And that really becomes critical because in every victim impact that I've ever seen, one of the questions that doc asks is, what do you think the judge should do as far as punishment? Well, that's the one piece of testimony that I cannot, by law, consider. You know, I can't delegate that duty to somebody else. So we have we as judges have to be careful about that.

00;15;36;12 - 00;16;05;13
Judge Sword
And that's a good point. And one of the ways I handle that is after I receive victim impact, testimony, particularly if it's been and, you know, very emotional, very difficult case, often a homicide case, I start my sentencing judgment, which generally takes me anywhere from 20 to 30 minutes on a homicide by addressing the victim's family. And I tell them, as a human being, I feel so much sympathy for you, but you need to know that I cannot let that affect my duties as a judge.

00;16;05;13 - 00;16;27;18
Judge Sword
And so what I'm getting ready to say is going to sound cold and calculating, and I'm just going to be talking about the law and years and certain factors. And it's that way, by design. So I kind of warn the victims that I understand their emotions. I sympathize with them often not saying no during my prayers. But then I have to shut that off. As a judge, you cannot consider that at all.

00;16;27;21 - 00;16;28;28
Judge Goodwin
That's right.

00;16;29;00 - 00;16;38;10
Host
So let's talk about we are talking a little bit about victim impact statements. So what exactly are they? Are they written. Are they oral. Does the victim have get to make a choice?

00;16;38;12 - 00;17;02;27
Judge Walden
Absolutely not. Unless you've been subpoenaed for a restitution hearing. If you've received a subpoena, you need to appear in court. But there are a variety of ways we can take that victim impact evidence. Sometimes it's a statement submitted to the TDOC probation officer that prepares the pre-sentence investigation report. Sometimes they they give an written statement to the district attorney, and the district attorney reads that statement in court.

00;17;03;02 - 00;17;08;29
Judge Walden
Sometimes they appear and they and they want to give testimony. So so there's a variety of ways they can be heard.

00;17;09;02 - 00;17;25;20
Host
Okay. So when you're looking at your pre-sentencing, reports that you've received, what are you what are the key elements that you're really looking for as a judge? What's like the most important parts of that sentence, when it's going to be an open, sentencing or it's been a jury trial. So now it's up to you to decide the sentence.

00;17;25;20 - 00;17;31;12
Host
What is what is just personally, what is the key parts of that pre-sentence report that you look at?

00;17;31;14 - 00;17;50;21
Judge Sword
You know, the law gives us all that guidance that we need. And so the first thing that you have to determine is what class of offense was this person convicted of. But let's use an example. Let's say they were convicted of aggravated assault. That's a class C felony. So now the judge knows my sentence can be anywhere from 3 to 15 years in prison.

00;17;50;23 - 00;18;07;00
Judge Sword
And again, the general public might think, oh, I guess you just decide how bad you think it was. And it wasn't that bad. You do three years probation. If it was really bad, you do 15 years in prison. Well, there's further steps that you have to take under the law. Then you determine what, range of offender that person is.

00;18;07;00 - 00;18;30;20
Judge Sword
And so that is based solely on their prior felony history. And so if they're a range, one standard offender, which means they have less than two felony convictions, and they're looking at, a 3 to 6 year prison. So the law narrows that down. And then what you get to there, there are further factors. You look at enhancement factors in mitigation that the judge should consider in determining whether or not it should be three, four or 5 or 6 years.

00;18;30;23 - 00;18;47;09
Judge Sword
And then you get in to manner of sentencing. And that's kind of I think the question you're really asking for is what are those those enhancement mitigating factors? What really stands out to you as a judge and, no, for me, it's prior criminal history for sure or not, Jim. Second thing is, probably one of the things that you look at first.

00;18;47;09 - 00;19;09;18
Judge Goodwin
Is whether it's this is the first thing you know, once you go through all those, steps, then the first thing I want to know is what is his what his or her history. And then so once I work through that, I want to know well within that history, have they been given probation before, and if so, how have they done?

00;19;09;20 - 00;19;32;11
Judge Goodwin
And all that information is in the record. And then once I work through that, I go back and I want to know what the defendant themselves have to say in the report about sentencing, about what they have done, what they're convicted of. And then I just go from there and then it's, you know, it's social history, work history, those kinds of things.

00;19;32;13 - 00;19;46;02
Judge Goodwin
But the hierarchy for me is you got to know what the prior record is. So, you know, where they fit within that matrix. And then I want to know, well, have they been given opportunities before or for probation and how have they done one.

00;19;46;02 - 00;20;08;13
Judge Walden
Thing that's important to note if someone is what we call range one, which means they have very little, if any, prior criminal history, the statutory guidelines state that they are they should be a favorable candidate for alternative sentencing. However, that's an advisory guideline. We don't have to do that in case law says that the burden is on the defendant to demonstrate that they are a good candidate for probation.

00;20;08;13 - 00;20;32;05
Judge Walden
So that's one thing that I always look at in these reports is looking at it holistically. Can I tell that they're cooperative with the probation officer? Because if they're not cooperative with probation officer, by showing up to their appointment for the presents investigation report, or they're being dishonest with the probation officer, that automatically signals to me, this person may not be a good candidate for probation because they're not going to show up.

00;20;32;05 - 00;20;51;28
Judge Walden
They're not going to cooperate. Sometimes it may even put TDC at risk by supervising this person. Those are all important things to look at as well. There's also a statistical report, that they're required to include. We call it a strong assessment. And that should demonstrate based on a series of questions. Are asked whether they're a low, medium or high risk offender.

00;20;52;00 - 00;21;11;22
Host
So in the we were talking a lot about prior criminal history and in the in the guilt and innocence phase of the of this case, the trial part that's often excluded because I mean, not always but often the rules of criminal procedure say we're trying to decide if this person is guilty or innocent of this specific crime. So we do not let in evidence of prior crimes.

00;21;11;22 - 00;21;28;29
Host
But now I now in sentencing, this is what you're saying is incredibly important. So this is sort of a change where if you've been following a case from a trial standpoint, you may not have heard about this. You may not know this person's priors. But now at the sentencing phase, the judge is going to have a lot of information about priors.

00;21;29;02 - 00;21;43;15
Judge Walden
You move from a presumption of innocence, which follows through every stage of the trial into I've either admitted guilt or a jury found me guilty. So that presumption of innocence is gone. So that person stands guilty of that crime.

00;21;43;18 - 00;22;09;10
Judge Sword
And a lot of what we're talking about on these factors, Barbara has the due to their amenability to correction and rehabilitation. And so one of the other, pieces of information that we get in those pieces is the defendant's, drug and mental health history. And so that will often tell us, is this person that is struggling with substance abuse issues, is that a treatable need that can be handled in the community?

00;22;09;12 - 00;22;22;29
Judge Sword
If so, what, options do you have in your community to get this person counseling, if it's mental health issues or to get them some substance abuse issues, which really is driving in Knoxville, I'd say 75% of our crime.

00;22;23;01 - 00;22;40;15
Host
And then in the in the reports, what what opportunity does the defendant have to speak. And I think we talked a little bit about it, but and from the attorneys standpoint, is the attorney going to put on evidence from defendant for the from the defendant saying that they do have a stable job? They do our good person in the community that they think they are.

00;22;40;15 - 00;22;44;15
Host
So what's a good narrative from your standpoint of judges for a defendant?

00;22;44;18 - 00;23;05;21
Judge Sword
You know, really depends upon what the the defense theory is on the sentencing hearing. If it is, for instance, somebody who is struggling with substance abuse issue, they, it's helpful to the court to hear what a plan like, here's, here's what we have lined up. Inpatient treatment form, outpatient treatment. He has insurance can help get him into these programs.

00;23;05;23 - 00;23;30;01
Judge Sword
It's also helpful to hear, as Jim said, from that defendant, they can make a statement to the probation, folks, doc, that will be included in the PSR, but they also have a right to allow you to make a statement without being questioned by, the state in the court before sentencing. And those things are helpful to the judge in determining is this person really amenable to correction, or are they just trying to get out of trouble?

00;23;30;04 - 00;23;54;19
Host
And again, and that's going to be a key difference between the adjudication phase or jury trial, where we if we rarely hear from the defendant honestly, they often take the Fifth Amendment. And there's a reason for that. But now in the sentencing phase, they do have the opportunity to speak to the court and say what they need to say, whether it's going to be to show remorse, talk about mitigating circumstances or whatever they want to say, but they don't necessarily have to be cross-examined.

00;23;54;21 - 00;23;56;28
Judge Goodwin
That's correct. That's correct.

00;23;57;00 - 00;24;03;06
Host
So do you hear a lot from defendants in their sentencing phase? How often do you actually hear from the defendant, whether in writing or at least.

00;24;03;08 - 00;24;05;08
Judge Goodwin
99.99% of the time?

00;24;05;09 - 00;24;12;14
Host
Okay. So they do often take the time to speak in to the and what sort of mitigating factors do you like? Do you consider.

00;24;13;08 - 00;24;32;13
Judge Walden
It really varies greatly depending on what you're looking at. And I think the majority of what most of us see are, like judge said, drug related crimes, or if it's property crimes, it's still driven by an addiction needs. So what I look for is a track record. If that defendant is out of custody when they're sentencing, I want to know if they've gotten a job.

00;24;32;16 - 00;24;52;15
Judge Walden
If I don't, what I don't like to hear is if you give me probation, I'm willing to go to treatment. Because if they've been out of custody for an extensive period of time, they've had the opportunity to begin that in some way, or at least have secured an inpatient beds somewhere or started some sort of program. Sometimes they need probation help for that.

00;24;52;15 - 00;25;08;01
Judge Walden
But the ideal sentencing situation for a defendant is saying, since this case has been pending, I have secured employment, I have participated in my own rehabilitation, and I'm not waiting on the court to make me do it. That is not an ideal candidate. That's also a rare candidate.

00;25;08;09 - 00;25;10;22
Judge Goodwin
It's very rare.

00;25;10;24 - 00;25;37;06
Host
So we get into it a little bit. But what our options in sentencing, obviously there's jail time. There's probation that we've talked about. We've got community service. But what about fines and restitution and how often do you are you able to use restitution, which is sort of especially in a property sort of theft case, if someone has broken into my car and stolen my beloved bike, and I going to get my bike and my bike is gone, let's assume it's we can't find it.

00;25;37;08 - 00;25;46;06
Host
And I get to get money back from. I'm out my $10,000 bike. Am I getting it back? Am I not getting it back? Sort of. What? What? When can you use restitution?

00;25;46;09 - 00;26;07;19
Judge Sword
Yeah, the statute encourages the use of restitution, in sentencing. But we are limited to the ability to pay of that offender. So quite often, the folks who are committing these criminal offenses, whatever they they've taken, they don't have it any longer and they don't have the means to replace it. And say you can order restitution.

00;26;07;22 - 00;26;27;22
Judge Sword
Now, enforcing that is quite often, hard to do. And so you can't get blood out of return. Then, at the end of their probation that they haven't paid off all their restitution, then the victim can convert that to a civil judgment and attempt to collect in perpetuity. And, and they can't be bankrupt.

00;26;27;24 - 00;26;39;00
Judge Sword
However, again, a lot of these folks, it's hard it's hard to get the, the restitution out of to simply because they don't have the means to pay it or the ability to get a job with that.

00;26;39;02 - 00;27;01;10
Judge Walden
That's another great example of an ideal defendant comes in and I and I've had this before, where they have some large portion of the restitution in hand at sentencing to deliver to the victim that that is ideal, because the law specifically says that restitution is a form of punishment. So if we can get that part of punishment out of the way, that that is something that's really important.

00;27;01;10 - 00;27;11;28
Judge Walden
And I think it also shows remorse and it shows an acceptance of responsibility. If they're walking into the courtroom prepared to start paying on the restitution at that time.

00;27;12;01 - 00;27;30;10
Host
All right. So the big decision, I mean, obviously, in some cases, it's going to be obvious that it's jail time for, you know, certain felony first degree murder. You're going to go to jail. So you have to just decide the amount and the length of the sentence and whether it's going to be, you're going to be opportunity for parole or not, but the hardest or the hardest decisions.

00;27;30;12 - 00;27;33;20
Host
We're trying to decide jail time versus probation.

00;27;33;22 - 00;27;58;05
Judge Sword
Sure. For me personally, that's that's the biggest struggle in the law. It'll take you so far. It'll tell you here's what your options are. And sometimes you said, Barbara, the options are clear. All you're trying to figure out is, how long am I going to send you to prison? But, you know, we get a lot of cases where the court has the option of granting diversion, placing them on probation, doing split confinement, where they do some period in local jail or sitting on the prison.

00;27;58;08 - 00;28;21;08
Judge Sword
That's when you really need to rely on the law and make sure that you're not making a decision based upon your own personal biases, or because you've had a bad day that you're able to set all that noise aside, go back, take the time, evaluate the facts of that case, and evaluate the enhancement mitigation factors. Look at the guidance that you've been given under the law, and make the determination on each of those factors.

00;28;21;10 - 00;28;42;17
Judge Sword
You know, it sounds a little cold and calculating, and it should be, you know, we don't want judges to make decisions from an emotional point. If you get angry at the defendant for something they did, you don't want to send them out of anger. However, if justice requires under the law that they serve that penitentiary a lengthy, version of that, particular offense in the penitentiary, and that's what you should do.

00;28;42;17 - 00;28;48;28
Judge Sword
You just need to make sure that you're following the law and letting that dictate you, rather than your personal feelings about the case.

00;28;49;05 - 00;28;58;19
Host
And when you're making the decision for jail time versus probation, can you hear from the defendant's family, the defendant's kids or spouse, and the impact that incarceration would have?

00;28;58;26 - 00;29;22;17
Judge Goodwin
The defendant can put on proof. And I would I would let them put on whatever proof they want to, and if their family, in fact, defender's family regularly gets up and testifies about how they will be impacted if he is or she is in jail, and I consider that under whether the defendant has support in the community under that.

00;29;22;17 - 00;29;53;07
Judge Goodwin
So there's a factor for that. However, it's like Steve said, you can't let you know. It's an emotional time for both sides, especially if someone's looking at potentially going to jail for a long time. And, and you can hear that proof you can take that proof, but you have to listen to it, consider it, and then make your decision on an emotional basis.

00;29;53;09 - 00;30;11;26
Judge Sword
And find that that testimony from the defendant's family sometimes is the most impactful of that defendant when they start really coming to terms with the fact that not only they screwed up their lives and the victims lives, but they really hurt their own families do. And a lot of times you'll kind of see that light come on in their eyes that, well, I really screwed up here.

00;30;11;29 - 00;30;14;01
Judge Goodwin
Yeah. That's true.

00;30;14;04 - 00;30;24;24
Host
And so we've talked about how the legislature sets minimum and maximum sentences for, for a crime. When do you feel like you can go above a maximum or below a minimum?

00;30;25;01 - 00;30;25;28
Judge Walden
You cannot.

00;30;26;01 - 00;30;27;01
Host
You can never?

00;30;27;03 - 00;30;29;01
Judge Goodwin
No.

00;30;29;03 - 00;30;54;10
Judge Sword
Yeah. That's right. And so I mean, there's there's something called, especially mitigated offenders. But that's really just going to impact the manner in which the sentence is going to have. And that's one of the things that I think is beautiful about the Tennessee law, is that the judges are given discretion within the ranges, of the offenses and, the, range of that particular offender.

00;30;54;12 - 00;31;11;25
Judge Sword
But we have fairly consistent sentencing because of that, that the legislature said, you know, we're going to give you some discretion, but we want to make sure that these offenses are treated the same throughout the state. And so the judge really, it's not like federal court where you can depart from the recommended sentence. That's exactly right.

00;31;11;25 - 00;31;17;28
Judge Sword
You know, here's the range. Here's what your options are within the range. And if you depart from that, then you're going to get reversed.

00;31;18;00 - 00;31;35;02
Judge Walden
And to be clear, you can't even go outside the range. So the aggravated assault example we use, which is class C felony punishable by 3 to 15 years if they're range one, which means they have very little criminal history, if any, 3 to 6 years. I can't give them seven years under any circumstance.

00;31;35;04 - 00;31;43;04
Host
So let's talk a little bit about probation. What exactly is probation and what are the expectations of the defendant's probation?

00;31;43;04 - 00;32;03;29
Judge Walden
First of all, there are two forms. There's supervised and unsupervised. And in criminal court we're dealing with felonies. It's rare for us to see a lot of unsupervised probation, although for misdemeanor sentences, it's a lot more routine. And I tell defendants because sometimes if they've been performing well on supervised probation, we on rare occasion will move them to unsupervised probation.

00;32;03;29 - 00;32;24;25
Judge Walden
I make it clear to them you're still on probation. So if you're not following the rules of the court, you're picking up new charges. You can still have your probation revoked even though you're not going to see a probation officer. But most people, especially on felony sentencing, they're supervised by probation with the Tennessee Department of Corrections. So they're reporting regularly to a TDcJ probation officer.

00;32;24;25 - 00;32;57;08
Judge Walden
They have their own officer. They're being drug tested regularly. If that's recommended, which in most circumstances, it is, probation will help them with resources. They'll help them with employment. They will help them, they'll refer them to a social worker if they need, recommendations for mental health or alcohol use or substance abuse, those types of treatment, probation actually comes to their own, typically at least twice a year, sometimes more often conducts a home visit, making sure that they're living in an appropriate environment.

00;32;57;11 - 00;33;07;12
Judge Walden
So probation is intense, but it's also something that, in our view, at least, it's easy to show up for probation, especially if it keeps you from having to be locked up.

00;33;07;15 - 00;33;17;06
Host
So what kind of conditions can you put on probation? Can you be creative at all? And with and match probation conditions to the specific defendant?

00;33;17;09 - 00;33;35;04
Judge Sword
Well, sure, we do that quite often. Typically when they have substance abuse or mental health issues, we order them to, enter treatment and, and get, take medication. Sometimes we're allowed to do that. The Department of Corrections has a lot of discretion, as well, to do on how closely they're going to supervise an offender.

00;33;35;04 - 00;33;59;03
Judge Sword
And they've, they've set up different levels where they have, just regular probation where they may see them, you know, once every few months they have enhanced probation where they're going to have them come in at least once a month. And then, they've, they've set up different levels. They'll set up different, treatment, like we have a day reporting center, in Knoxville, where those offenders are reporting virtually every day of the business week.

00;33;59;05 - 00;34;14;26
Judge Sword
And it's almost, full time job being on probation. And so they sort of structure within the Department of Corrections themselves, a program or probation for that offender. But the judge can also say, you know what? I know you qualify for regular probation, but I want you to be on enhance. I want you to be seen a little bit more.

00;34;14;26 - 00;34;36;29
Judge Sword
I'm going to order, you know, a drug screening every week, on you. And, I'm going to order you to stay, out of certain parts of the town and stay away from, victims. So that's a standard one. I'm sure you guys have seen particular cases where you also make very specific, orders to address the situation. In that case.

00;34;37;05 - 00;34;47;21
Judge Walden
Yes. I've ordered individuals to to not be in charge of the finances of another. Because sometimes we see that with, financial exploitation crimes.

00;34;47;23 - 00;35;13;13
Judge Goodwin
Yeah, that the big requirement is that any condition we put on a defendant with regard to probation has to reasonably relate to the crime that they're convicted of. So, you know, I've had I've had, drug diversion cases where a nurse would work at a hospital and divert drugs and one of the conditions of probation is you can't work in that field while you're on probation.

00;35;13;15 - 00;35;19;10
Judge Goodwin
Even if you get your license back, you can't work in that field. So, you know, we have a lot of.

00;35;19;10 - 00;35;28;09
Host
And when do you utilize recovery courts or alternative sentencing? Is that always a possibility or is to just touch briefly on that?

00;35;28;11 - 00;35;54;01
Judge Goodwin
It has to be, a nonviolent crime. It has to be a non sex crime. And this, this one requirement varies from court to court. But it can't just be a drug dealer. It has to be someone, you know, maybe someone was dealing drugs to support their habit. But then they have to go through a battery of, tests, and they have to score.

00;35;54;02 - 00;36;10;03
Judge Goodwin
There's there's a matrix needs versus risk, need being the need for treatment, risk being the risk to re-offend. And if they're high risk high need then they're a person who should be considered for recovery court if they meet those baseline requirements.

00;36;10;08 - 00;36;28;27
Judge Walden
And that's true for a recovery court as well. And the we do take some people that have sold, you know, just to either support their habit or they have friends that have come over to use with them, and they're selling part of their supply. And we draw the line. But I always call entrepreneurs, we we don't want entrepreneurs in our recovery court because we have a good.

00;36;28;27 - 00;36;51;10
Judge Sword
Base of business for, interestingly, we're getting ready to start a mental health court in Knoxville in about two months. And so we don't have quite the same restrictions as the the drug recovery courts have. And so, we're not limited by the offense they were convicted of, really more limited by, the nature of their of their mental health issues.

00;36;51;10 - 00;37;20;02
Judge Sword
So we're looking at folks who have serious mental health issues that need to be treated in the community. But you also have to balance that with the ones who are too severe, to, be safe in the community. And so it's going to be interesting to see how those decisions are made, because the district attorney's office has a right, in the mental health court to step in and say we object for whatever reason, this person be in a mental health court, then that person gets it in process.

00;37;20;04 - 00;37;36;27
Judge Sword
And so we're we're experimenting with it. We're spanning it. That's happening all over the nation. We're trying to figure out, you know, who can be really successful in these recovery court type situations and who really, needs to be guarded more closely, through incarceration.

00;37;37;00 - 00;37;44;11
Host
And so what happens when someone's on probation and you, and they violate their, the conditions of their probation?

00;37;44;14 - 00;38;09;19
Judge Walden
So it depends on if it's a technical violation versus a non-technical violation. A technical violation might be something like, I missed an appointment or I missed a drug screen one time. Or, payment of restitution. That's a technical violation the first time it comes to our attention. What's interesting is most of these are actually handled internally at two CV, their sanction matrix before it ever comes to our attention.

00;38;09;19 - 00;38;34;00
Judge Walden
So once they're severe enough, they'll send the technical violations to us. The first time. We actually don't have the ability to incarcerate them. We can impose stricter conditions of their probation, but we can't, we can't put them in jail for one technical violation. The second time, we can do 15 days, and it goes up each time for non-technical violations, which is what we see the most of, that consist of absconding from probation.

00;38;34;00 - 00;38;55;07
Judge Walden
It's more than I just missed one time. It's. I've disappeared. Probation can't locate me. I'm gone. We we also have new offenses that are a misdemeanor or a felony. That is a non technical violation. And then we have, anything that is a zero tolerance offense for TDcJ, which is primarily testing positive for meth. Those all come to us.

00;38;55;07 - 00;39;07;11
Judge Walden
So as a probation violation where we have a little more ability to do something so we can extend probation by up to a year, we can remain someone to serve their entire sentence or anything in between.

00;39;07;13 - 00;39;24;00
Host
From a sentencing hearing on a difficult case where you have a difficult decision to make just from your opinion. What is a good sentencing hearing? When do you have a sentencing hearing in a difficult case, and you stand up and you're like, that was a great hearing. I now have what I need to make that decision.

00;39;24;06 - 00;39;40;02
Judge Sword
You know, a lot of times the lawyers will just get up and they'll make arguments and say, you know, here's this enhancement factor. It applies. And the defense will argue, we think this mitigation applies. And then you go back to your chambers and you're sitting there thinking through, well, I heard him say that, but I haven't really seen any evidence of that.

00;39;40;03 - 00;39;58;12
Judge Sword
And so a good sentencing hearing, like Jim was saying earlier, is both sides present evidence to though they will the state wants to rely on the prior criminal history. They don't just rely on what's in the BSA. They'll actually bring in certified copies of the judgment. They will, you know, put on additional proof that wasn't heard during a trial.

00;39;58;12 - 00;40;26;01
Judge Sword
And certainly if it was a plea, they can call witnesses and those witnesses to be cross-examined by the defense to help the judge understand the circumstance of that fence. And from the defense perspective, they hear proof on mitigation. So we actually have facts and evidence that we can really rely upon, that is more helpful to me than just hearing the lawyers argue certain positions and saying, this is what we think you ought to do, or give me something to base that on under the law.

00;40;26;03 - 00;40;49;21
Judge Walden
I think that Steve summed it up perfectly. What we're really looking for, especially when we have a case that came to sentencing by way of plea, we know virtually nothing about the facts of that case, but the facts and circumstances are something that that we're supposed to consider. What ends up in that pre-sentence report most of the time is either language from the indictment or maybe a couple of paragraphs that came from the officer's original arrest report.

00;40;49;23 - 00;41;11;19
Judge Walden
And sometimes we get a defendant's version of events and they're wildly different, and you've got to figure out how to reconcile that with no proof whatsoever. Another thing that I've always found helpful is when the parties file briefs in advance, they're supposed to file on the record if they're asking for an enhancement or mitigation factors. But a good hearing sets it up where they're arguing for which factors should apply and why.

00;41;11;21 - 00;41;27;03
Judge Walden
We have to consider the statutory principles of sentencing when they make specific arguments in their briefs about how we should apply those, to this particular situation. That's always really helpful for me if the parties can set it up well in a brief in advance.

00;41;27;05 - 00;41;30;04
Judge Goodwin
Totally agree with all that was said.

00;41;30;06 - 00;41;45;14
Host
So how do you set the rules apply? I mean, if obviously you have to set your docket, you have to set your day. So if I'm an attorney, how do I, I want to put on evidence. How do you say what kind of rules apply. And this is not necessarily the rules of criminal procedure going to apply. So how do you set that in your court.

00;41;45;14 - 00;41;51;15
Host
Like how long we can have, how many witnesses I can bring. Whether it's going to be cross-examination. How do you set rules.

00;41;51;17 - 00;42;06;02
Judge Sword
So that depends upon the case that we're dealing with, first degree murder sentencing hearing. I'm going to take all the time the parties need. Now, if you come in here on a DUI first and you're going to want to spend two hours, you're going to see a judge's eyes glaze over and it may not be that helpful to you.

00;42;06;02 - 00;42;33;27
Judge Sword
So, yeah, the rules of of evidence a certain relaxed during a sentencing hearing, you can hear a lot more testimony that you wouldn't really hear during your trial. But really, it's just proportional to, to the offense that we're dealing with. Generally, I don't cut attorneys off. They often pick up on my body language that I've probably heard enough, but I, you know, it's an important decision for for the victims and for that particular sentence, I want to make sure that they have the opportunity to be heard.

00;42;34;00 - 00;42;36;10
Judge Goodwin
Yeah, I normally don't cut the lawyers off.

00;42;36;12 - 00;42;57;16
Judge Walden
For for us. We may have 100 cases on the docket that day, but whoever is before us in that moment, for them, that's the most important case of the day. Whether it's lawyer, the defendant, the victim, they want to know that the court is listening. So it's important to give them the time that they need it. And you do get some attorneys that tend to go on to go on, too long.

00;42;57;16 - 00;43;13;06
Judge Walden
This may shock people. Attorneys like to talk too much from time to time, and you can kind of signal to them when you understand their point and make them feel you have been heard. So you don't need to keep talking, because I understand what you're saying, but you typically want to give them their time because it's a matter of liberty.

00;43;13;08 - 00;43;31;18
Host
Back to, creative solutions for like for fines, community service, restitution. When have you used, particularly creative solutions? Probably most likely along the lines of community service, obviously, like a property crime type of an example, when have you used creative, solutions and when, when can you at.

00;43;31;18 - 00;44;00;11
Judge Sword
This there's some discretion that the judge has on that. You have to be careful, make sure you're doing something that just isn't your idea. That sounds like a great idea for this particular case. And sometimes that's how judges get in trouble by going outside of their authority. But particularly if I'm dealing with a young defendant, you know, under 20, 19, 18 year olds, sometimes I'll try to be creative with them, to try to help them understand the impact of their, of their behavior.

00;44;00;11 - 00;44;22;27
Judge Sword
And community service is often one of those that you can use to say, you know, you you taken from this community, you need to give something back to them. And so but when you're dealing with folks who, you know, are longtime criminal offenders, then you're not going to be too creative to, to to come up with some idea that's really going to change them around. That's been my experience in my.

00;44;22;29 - 00;44;51;22
Judge Walden
I agree, and it does seem to be especially the younger first time, offenders that you're trying to impose those creative solutions because you're trying to keep them from becoming a convicted felon. A lot of times that's who's on a diversion. I have I had a young defendant expressed they needed a guy one time, and that in order to keep them on probation, I made it a condition that they needed to enroll in GED classes and not just pay lip service to the court in a sentencing hearing, but. But actually put the pedal to the metal.

00;44;51;24 - 00;44;57;00
Host
So once a case is all and end with this question. So what cases are the hardest for you to sentence?

00;44;57;00 - 00;45;19;13
Judge Sword
Well, the hardest, emotionally obviously ones when there's been a life taken, but the hardest ones as a judge are the ones where you have so much discretion. Particularly like, let's take the aggravated assault that we started the podcast with. You've got somebody who's committed, serious violent criminal offense. But the options, you know, you can actually get diversion for that.

00;45;19;13 - 00;45;41;04
Judge Sword
It's like a lousy felony. You can also send the penitentiary without parole for one of these. Now it's 100%, offense. And so you have such wide latitude. And so for me, those are the ones that are the hardest because you are going to have a tremendous impact on the life of of that person and the experience of the victims of their criminal justice system based upon that decision.

00;45;41;04 - 00;45;49;27
Judge Sword
And so the ones where, you can go anywhere from a diversion center, penitentiary with no parole, that to me, that's the hardest.

00;45;49;29 - 00;46;06;24
Judge Walden
There are times and and there's certain defendants where everything does seem to be stacked against them. You have victims there that are very upset. You have a district attorney that is aggressively pursuing the case, but you have a defendant who is showing you enough that you think this may be the time where they're about to turn it around.

00;46;06;24 - 00;46;23;23
Judge Walden
And then what you're really doing is you're taking a moment within your discretion and within the confines of law to to actually show a little mercy. And sometimes that's the hardest thing to do, because you're less shielded from criticism, from showing mercy than, than anything else you do. So that's always the toughest.

00;46;23;23 - 00;46;25;03
Judge Sword
Decisions.

00;46;25;05 - 00;47;04;15
Judge Goodwin
The discretion part of it, that component of it is what makes sentencing decisions difficult. Trying to balance, what the defendant deserves, what the victim needs. That can and if you have a, you know, if it's if it's First-Degree murder, it's easy. You get life with or you get life without one of the other. But that blow that when you have to balance those two competing interests and you have to make sure justice is served, that's when it gets difficult.

00;47;04;18 - 00;47;24;16
Judge Sword
And you know that the interesting thing to me is just as I'm sitting here thinking about, yeah, that that's the hardest part when when it's within our discretion to do pretty vastly different things. It's also what I think, energizes me as a judge because, you know, we don't want robots up there. You know, we could ask, you know, ask ChatGPT.

00;47;24;20 - 00;47;46;19
Judge Sword
So what's your answer to this? And, you know, we would end up with, more unjust sentences than relying on human beings sitting up there thinking, through the law and thinking about the particular cases. And so I don't mean to denigrate the discretion that we're giving. It's very important because without that discretion, you're going to end up with, many more unjust sentences.

00;47;46;24 - 00;47;59;13
Judge Sword
Like Zach said, you're going to miss out on the opportunities, really, to change somebody's life because this is the time that they really clicked with that person. And instead of in the penitentiary, you've created a productive citizen for our community.

00;47;59;16 - 00;48;03;01
Host
Well, thank you all for joining us for this edition of Tennessee Court Talk.

00;48;03;04 - 00;48;04;05
Judge Goodwin
Thank you. Thank you.