Downward departure draws SL&Ps ire

Here is a blog entry on Sentencing Law & Policy reporting (and expressing suprise) at a downward dispositional departure won by Cindy Sewell in State v. Cisneros, a Shawnee County rape prosecution. Here is the Topeka Capital-Journal article discussed in the blog entry. I think Professor Berman should be cautious about drawing conclusions from the reporting we see in Topeka cases, which is frequently somewhat one-sided.

I note on the court docket that the district court did impose an underlying 155-month prison sentence for this first time offense. If Mr. Cisneros does not comply with all terms of probation, he has a very lengthy prison sentence awaiting for the crime. I don't know anything about the facts of this particular case (and am somewhat more unwilling to draw conclusions from the C-J report than Professor Berman), but Kansas law certainly allows judges to impose dispositional departures, for any crime on the grid, so it clearly contemplates that someone convicted of exactly these charges could seek and receive a departure if warranted by the facts.

It's sort of interesting because Professor Berman has advocated a offender/offense dichotomy with regard to application of Apprendi to various facts (see his entry and his blog for more details), but focuses entirely on the facial offense-facts in this case without entertaining any possiblity that their might be offender-facts that would justify mitigation in this case. The article notes that the prosecutor will appeal (or cross-appeal as the case may be). We will likely have the opportunity to see whether the appellate court (apprized of all the facts) thinks the district judge abused his discretion or not. I think I will reserve judgment until I see the actual record of sentencing rather than the C-J report for a fuller understanding of the facts.

[Update: here is Topeka Capital-Journal article reporting that Bill O'Reilly has jumped onto this bandwagon to attack the departure sentence imposed in this case].

[Further update: Mr. Cisneros' probation was revoked on August 9 for drug use. Here is the Topeka Capital-Journal article report. I guess we'll never know what the appellate court would have thought!]