Superior Court judges' sentencing of offenders varies

A lawyer hoping to keep his client from going to prison for aggravated assault might be happy to see Richmond County Superior Court Judge Sheryl B. Jolly oversee the case.

Not so much Judge Albert M. Pickett before he retired.

In an analysis of the sentencing practices of local Superior Court judges over a 10-year period, The Augusta Chronicle found that the judges vary widely in their treatment of offenders.

Among current judges, Jolly was the most lenient in deciding to incarcerate for aggravated assault, giving prison time in only 25 percent of these cases she handled. On the other end of the sentencing spectrum, Pickett, who retired in 2004, sent offenders to jail 63 percent of the time.

The Chronicle looked at the sentences handed down in categories that give the judge discretion on punishment, while at the same time selecting cases that have the greatest effect on the average person. These include: aggravated assault, burglary, child molestation, cruelty to children, possession of cocaine, possession of methamphetamine and theft by taking.

Mandatory minimum sentences for crimes such as murder and armed robbery, which take the discretion out of a judge's hands, were not included.

Aggravated assault aptly fits the description of a crime that has a great impact on a person. It is often a murder attempt that doesn't result in death.

According to Georgia law, a person commits an aggravated assault when he or she assaults: with the intent to murder, rape, or rob; with a deadly weapon or other item that is likely to cause serious bodily injury to the victim; or when a person without legal justification discharges a firearm from within a motor vehicle toward other people.

Essentially, anyone who is shot, stabbed or severely harmed with a weapon and lives is a victim of aggravated assault.

Former Judge Neal W. Dickert gave the shortest amount of prison time for this crime -- an average of about four years. Jolly gave the second-shortest amount -- about five years. Pickett again was the toughest, handing down on average a prison stint of about 13 years.

Variation common

The sentencing vagaries are even greater with burglaries, where an offender was likely to get about nine years from Senior Judge Bernard J. Mulherin Sr. and only about three years from Jolly.

This kind of variation is not only common in court districts across the nation, but in some ways essential, according to Robert Batey, a professor of criminal law and sentencing at Stetson University in St. Petersburg, Fla. Batey said most people recognize that each case is different, even if the charges are the same. Because of this, judges must have some discretion in assigning a sentence.

Still, this leads to a wide berth in sentences that can appear arbitrary, he said.

The federal government has opted for uniform sentencing guidelines -- which make clear at the time of sentencing how long the offender will be in prison -- but there are none for the Georgia state courts.

"Whenever you give human beings discretion, there is going to be variation," Batey said. "On the other hand, to give everybody the same sentence when each case really is different is also its own form of arbitrariness."

In the past, attorneys sometimes tried to game the system through what was called judge shopping.

Before the Georgia Supreme Court ordered the Augusta Judicial Circuit in 2005 to have the clerk's office assign cases randomly, lawyers would know in advance who was to get their cases. Often, if the judge was someone who had a reputation for being tough, a lawyer would seek a continuance that could roll the case over to another judge.

With the new system, that is no longer the case, but it doesn't stop attorneys from hoping.

"From the defense side you hope you get a judge that has a history of lenient sentencing with regard to this particular defendant's type of crime," Batey said. "Whereas if you are a prosecutor you hope for just exactly the opposite."

Discretion is vital

While the data shows that local judges' sentencing practices can vary greatly, in interviews with The Chronicle some had similar thoughts in describing their sentencing.

Jolly and Judge James G. Blanchard Jr. each said individual cases deserve individual attention. Details and circumstances vary .

Blanchard described sentencing as a balancing act of numerous factors, including the nature of the crime, the acceptance of responsibility, the person's background and what he called the "expertise" in the commission of the crime, among other factors.

He said he wasn't surprised by the variation of sentencing for judges, saying they rely on their different backgrounds and perspectives.

"You give it your best," he said. "You dwell on it and you have to think on it and you do the best you can with your past experiences."

He said there is sometimes little time to prepare beforehand.

"What you have is a judge that may have 25 to 30 people on a sentencing calendar and he's been busy all week trying other cases," he said. "He comes in and in a matter of minutes you have this person's life presented to him and you're having to make that judgment, a decision right then, using all of your knowledge you've acquired through the years."

Jolly was the only judge to give prison sentences lower than the state average for every category The Chronicle examined.

When asked about her sentence history, Jolly said just looking at the percentage of individuals sentenced to prison or the sentence length does not give the complete picture. Jolly said a judge must take into account numerous factors before imposing a sentence, such as the amount of time served pretrial or whether the person needs time to pay a fine or restitution. Using the example of someone convicted of a drug charge who is not suspected of being a dealer, Jolly said: "I could look like a really tough judge by imposing a $10,000 fine on that case -- and I could do that -- but the chances of the state collecting that on a low-level drug user are slim and none," she said.

Jolly said her two decades of experience as a Richmond County prosecutor before becoming a judge also affects her sentencing.

"I would say I probably sentence a lot of cases to maybe five years on probation where somebody else might sentence them to eight, but I do it because -- in my experience in doing, not only on the bench, but as being a prosecutor for 20 years before I got here -- I know the realities of how long they're going to be monitored," she said. "So I don't do it to make it look pretty."

Felony charges and sentencing information for Richmond County between 2000 and 2009.

The judges

Judge Michael N. Annis

Age: 58

Appointed: Sept. 18, 2003

Attended: Augusta State University; Walter F. George School of Law, Mercer University; University of Florida Levin College of Law

Other public offices: Chairman, Columbia County Board of Education

Judge James G. Blanchard Jr.

Age: 68

Appointed: Jan. 1, 2002

Attended: Augusta State University; Georgia Southern University; Cumberland School of Law

Other public offices: Judge, Juvenile Court of Columbia County; attorney, Columbia County Board of Education; attorney, City of Grovetown; chairman, Columbia County Commission

Judge Carl C. Brown Jr.

Age: 62

Appointed: Dec. 5, 1994

Attended: Mercer University; Walter F. George School of Law, Mercer University

Other public offices: Judge, Municipal Court of Augusta

Former Judge Neal W. Dickert

Age: 64

Elected: 1996, assumed judgeship Jan. 1, 1997

Attended: Wofford College; University of South Carolina

Senior Judge William M. Fleming Jr.

Age: 86

Appointed: May 8, 1968

Attended: Norwich University; University of Georgia School of Law

Other public offices: Member, Georgia House of Representatives

Chief Judge J. Carlisle Overstreet

Age: 65

Appointed: Nov. 1, 1991

Attended: Augusta College; Walter F. George School of Law, Mercer University

Other public offices: Judge, Municipal Court of Augusta

Senior Judge Albert M. Pickett

Age: 68

Appointed: Dec. 18, 1979

Attended: University of Georgia; University of Georgia School of Law

Former Judge Duncan D. Wheale

Age: 63

Elected: 1998, assumed judgeship Jan. 4, 1999

Attended: The Citadel; John Marshall Law School

Judge Sheryl B. Jolly

Age: 51

Elected: 2004, assumed judgeship Jan. 1, 2005

Attended: Walter F. George School of Law; Mercer University

Other public offices: Solicitor general, Richmond County; chief assistant solicitor general, Richmond County; assistant solicitor general, Richmond County; assistant district attorney, Richmond County

Senior Judge Bernard J. Mulherin Sr.

Age: 78

Appointed: March 7, 1980

Attended: Spring Hill College; University of Georgia School of Law;

Other public office: Augusta city council