w Editor’s note: National Judicial Outreach Week occurs annually in the first week of March, when judges engage with their communities to discuss the Rule of Law and the work courts do every day.
During National Judicial Outreach Week, Hawai‘i state judges reach out to our communities to foster a better understanding of the work of the courts and the Rule of Law — the legal principle that every citizen is subject to the law, no one is above the law, and everyone is equal before the law.
The courts are charged with safeguarding this fundamental principle of our democracy and applying it equally to maintain open and transparent government, ensure fairness in our justice system, and protect the legal rights of all citizens.
This year, I’d like to address some questions we hear frequently from the public about how judges determine sentencing in criminal cases.
Why is sentencing so different in similar cases?
What’s important to understand is that while certain cases may sound similar, often there are distinct differences between cases that lead to different rulings by the judge. In my experience, no two cases are exactly alike.
That is why you might see one person get jail or prison, while another gets probation for what sounds like the same crime. However, there are probably distinguishing characteristics between the two cases. Judges must consider both the law and facts of each case individually. The factors underlying every sentence will be part of the record, which is made available for public review.
Another thing to be aware of is that there are sometimes extenuating or mitigating circumstances, which the judge must consider. For example, while it’s illegal to assault someone, in cases involving self-defense, defense of property, mutual assault, etc., there could be a reasonable defense. In these situations, under the law you are not simply guilty of assault.
Finally, remember that what you hear about a case is probably just a summary based on what someone else thinks are the highlights. What might get left out is what the judge found to be the most-important points. So, where there are differences in outcomes, there are almost always differences in the facts as well.
How is sentencing decided in criminal cases?
While it’s understandable that you may have strong feelings about certain cases, the judge is required to consider all the facts presented in court. Therefore, once a person is convicted of a felony in Hawai‘i’s Fifth Judicial Circuit (Kaua‘i), sentencing is normally scheduled 12 weeks later.
This allows the probation officers time to conduct a thorough background investigation of the defendant and prepare a pre-sentence report. The report is confidential by law and quite extensive, covering the defendant’s background, age, employment history, any substance abuse, mental-health history, any past crimes, family support and financial situation. It is given to the judge, defense attorneys and prosecutors for consideration prior to sentencing.
In determining the sentence, the law requires judges to review the nature of the crime and the person as an individual, along with a variety of other factors, among them: Are there community treatment programs that may address a person’s problem? Would anger management prohibit the same behaviors from reoccurring?
In the end, sentencing is not entirely up to the judge. While judges have some reasonable discretion, for each type of crime we are required to follow the guidelines for sentencing passed into state law by the people’s elected representatives in the Legislature.
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The Honorable Kathleen N.A. Watanabe is a judge in Hawai‘i’s Fifth Judicial Circuit.
