Attorney Scott Campbell

Criminal Defense Attorney

Category: Criminal Law

Sentencing in Criminal Cases

Sentencing in Criminal Cases. I was recently challenged by a retired city judge to justify my opinion that some defendants accused of identical crimes should receive different sentences.  I do believe this is because of different theories of punishment, as I will detail.

Sentencing in Criminal Cases

Sentencing in Criminal Cases

The Deterrent Theory

Under this theory, the punishment is determined by the crime.  This is “cookie-cutter” justice; every offense is associated with a certain penalty.  The purpose is to deter others from committing the crime by demonstrating what the punishment will be.  This theory is behind mandatory minimum sentencing laws, laws that don’t work as demonstrated by out burgeoning prisons filled with people serving mandatory sentences.

The Retribution Theory

Here, a sentence is dictated, influenced, or imposed based on the victim’s desire for revenge.  While we don’t literally do this, many states have laws dictating that a victim be consulted before any plea bargain and be allowed to address the Court before a judge decides on a sentence.

The Punishment/Rehabilitation Theory

Under this theory, a judge imposes a sentence meant to punish as well as allow for rehabilitation of the offender, paying less attention to the crime and the victim.

It was in a discussion of this third theory that the retired judge challenged me.  The judge asked if two defendants, charged with the same offense, should receive the same sentence.  I said, of course, depending on the situation.  This judge was almost incredulous at this idea.

The example I used, falling on deaf ears, was a husband accused of a domestic violence offense against a wife.  I gave the opinion that any fine imposed should consider the impact on the family, especially the victim and any children.  I continued that mandatory counseling should be imposed.  Some people can absorb a fine with some or little impact on their finances, but other, less well-off people cannot and the financial shortfall would affect the victim and children more than the offender.

I am happy this judge is retired, but it is a shame so many are like-minded.  If we have cookie-cutter justice, why bother with the charade so often called sentencing?

Sentencing in Criminal Cases

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What constitutes domestic violence in Arizona?

What constitutes domestic violence in Arizona?

Today’s guest blog is by Attorney Paul W. Hamilton

The legal definition and consequences of domestic violence in the state of Arizona are referenced under Arizona Revised Statutes 13-3601. In essence, it is the use of violence against a family member, significant other, sexual partner and in certain cases, an acquaintance.

What constitutes domestic violence in Arizona

What constitutes domestic violence in Arizona?

On the authority of ARS 13-3601, the charge of domestic violence can be applied in the following cases:

  • The alleged victim and aggressor are married, were formerly married, share a household or formerly shared a household.
  • The alleged victim is pregnant with the accuser’s child, the victim and accused are related by blood or marriage.
  • The accused lives in the same household as a minor victim and the two are related by blood or through a former spouse. The accused and victim are or were in a romantic or sexual relationship.

The nature of the domestic violence can be physical, sexual and also economic. When dealing with domestic violence cases, the court has to take into account the nature of the relationship between the accuser and the victim, the period of time during which the relationship has or had been ongoing, as well as the frequency of interaction between the accuser and accused. In cases of a terminated relationship, the time period since the relationship has been ended is also taken into account.

Offenses that may result in a domestic violence charge

According to ARS 13-3601 if any of the offenses listed below are committed against an individual who is in a relationship that is defined as protected by Arizona’s domestic violence laws, the charge of domestic violence applies.

  • Negligent homicide, manslaughter or murder
  • Endangerment (acts that create substantial risk of bodily harm to another person)
  • Threatening or intimidating a witness
  • Assault or aggravated assault
  • Custodial interference (interfering with a parent or legal guardian’s physical custody of a child)
  • Unlawful imprisonment
  • Kidnapping
  • Sexual assault
  • Criminal trespass
  • Criminal damage
  • Interference with judicial proceedings
  • Disorderly conduct
  • Cruelty to animals
  • Preventing use of a telephone during an emergency or false representation of an emergency
  • Intimidation, annoyance, and harassment over the telephone
  • Stalking
  • Emotional abuse of a child or vulnerable adult
  • Dangerous crimes against children

How is Domestic Violence Charged?

How domestic violence is charged as a misdemeanor or felony depends on the exact nature of the violation. In cases of emotional abuse or endangerment, the accused can be charged with a Class 1 misdemeanor. A charge of disorderly conduct involving a deadly weapon is a Class 6 felony.

If an individual is charged and found guilty of one of these offenses, such as assault, he or she will face the potential sentence recommended by Arizona courts. If the convicted does not have any prior record, typically criminal penalties are the same regardless of the domestic relationship between the victim and perpetrator. However, domestic violence cases are often prosecuted much more aggressively than typical legal cases.

A second conviction of domestic violence can result in the convicted being put on supervised probation with jail time being one of the conditions for probation.

Being found guilty of a misdemeanor domestic violence charge for the third time in an eighty-four month period can result in a felony charge resulting in the individual being charged with jail time accordingly.

If the charge involves serious bodily harm to the victim or the use of a weapon, the accused may be charged very seriously.

Aggravated assault is a class 3 felony with a minimum jail time sentence being five years and the maximum jail time sentence being fifteen years.

Because of the nature of domestic violence charges and the stigma associated with them, it is crucial to take domestic violence accusations and charges very seriously. It is of the highest importance to find proper legal representation, preferably with an attorney who has extensive experience in domestic violence cases.

What constitutes domestic violence in Arizona?

Author Bio:

Law Office of Paul W. Hamilton strives to exceed your expectations in criminal law, family law, real estate, estate planning & probate representation. Call (229) 232-8056

How Are Felony Crimes Classified Under Arizona Laws?

How Are Felony Crimes Classified Under Arizona Laws?

Today’s guest blog is by Michael L. Ainley, Esq.

Felony crimes refer to serious criminal offenses and carry a prison term of at least one year. The most serious felonies are punishable by death. These are crimes which include a physical violation of another human beings rights violation. Examples of such crimes are murder, rape, sexual molestation of a child, armed burglary and thefts of property with very high monetary value. Prison terms are longer for people convicted of repeat felonies. In Arizona, felonies are classified as Class 1, 2, 3, 4, 5 and 6.

How Are Felony Crimes Classified Under Arizona Laws

How Are Felony Crimes Classified Under Arizona Laws?

Class 1 Felony – Class 1 felonies are reserved for murders in the first and second degree. First-degree murder (murder that is both willful and premeditated) is punishable by death or life in prison. Second-degree murder (a non-premeditated murder, resulting from an assault in which the death of the victim was a distinct possibility) is punishable by 16 years to life in prison.

Class 2 Felony – In Arizona, Class 2 felonies are reserved for sexual molestation of a child, production of child pornography, possession of dangerous drugs (methamphetamine, LSD, mescaline) for sale, trafficking of stolen property, burglary with a firearm and theft of property worth more than $25000. The presumptive prison term for these crimes is five years and the aggravated term can be up to twelve and a half years.

Class 3 Felony – Possession of more than two but less than four pounds of marijuana, certain forms of theft, certain forms of stalking and telecommunications fraud are all Class 3 felonies in Arizona. They allow sentences of a minimum of two years in prison, whereas aggravated sentences can carry a sentence of up to 8.75 years.

Class 4 Felony – Class 4 felonies in Arizona include theft of property with a value between $3000 and $4000, growing marijuana illegally, possession of dangerous drugs, identity theft, weapons misconduct and driving under the influence. Class 4 felonies carry prison sentences of one year, with aggravated felonies carrying a sentence of up to three years and eight months.

Class 5 Felony – Prostitution, as well as pimping and pandering (facilitating and making a profit from prostitution), are class 5 felonies. Class 5 felonies carry a prison term of two years, with the aggravated term being one of two and a half years.

Class 6 Felony – Class 6 felonies are the least serious felony crimes under Arizona law. These include charges for possession of drug paraphernalia, unlawful use of means of transportation and theft of property with a value of $1000. In some cases, a judge may designate the conviction as a class 1 misdemeanor, which can result in a sentence of six months in jail and three years of probation.

Statute of Limitations

The statute of limitations is a time period designated by lawmakers during which the state of Arizona must begin prosecution against the defendant or their attorney can have the case dismissed. Usually, the state has a period of seven years from the time the crime has been committed to begin its prosecution. However, the most serious felonies such as murder and production of pornographic material featuring children have no statute of limitations and the state can begin its prosecution at any time.

Felony convictions have serious consequences. If convicted, an individual can go to prison and lose chances of finding employment which is up to the standard of his or her qualifications. The individual can lose the right to vote and to possess a firearm. Being convicted of multiple felonies can result in a harsher punishment, meaning longer prison terms and heftier fines. For further information click here

How Are Felony Crimes Classified Under Arizona Laws?

Author Bio:

People in northwest Tennessee turn to the law office of Ainley, Hoover & Hoover, PLLC when they need experienced legal advice or representation to resolve simple to complex legal issues. At Ainley, Hoover & Hoover, PLLC, you can expect fairness and honesty, and to be treated with the respect and dignity you deserve.

Can I Sue the Police?

Can I Sue the Police? This is a question I am often asked.  The answer is yes, you can sue the police.  The bigger question is whether you will be successful.

Can I Sue the Police

Can I Sue the Police?

The government puts many obstacles in the way of suing the government or a government officer.  First, in a lawsuit in State court, the government says you cannot sue for certain things.  Basically, you cannot sue the government for making a certain policy or for deciding how to spend money.  In other words, if a police officer was following written policy, he is immune.  If a city doesn’t spend enough on staffing sufficient police officers, you can’t sue them for that decision.

Then there is something known as “qualified immunity.”  This takes two forms.  First, if a police officer does certain things (such as fails to make an arrest, an escaped prisoner harms you, rendering emergency care) unless the officer was “grossly negligent.”  Second, if an officer violates your rights, but that right is not sufficiently clear in the law, he may be immune from suit.

Another obstacle, if you are suing in State court, is the requirement that you serve the officer and his department with a Notice of Claim within 180 days of the incident.  Then there are other very strict deadlines.

If you want to sue in Federal Court, qualified immunity may still apply, but the 180-day notice deadline does not apply if you are suing under Federal law.

To be successful in suing the police, you must have some significant damages (not just hurt feelings) and a clear cause of action.  If that is the case, see a lawyer immediately so you don’t miss the very strict deadlines for action.

Can I Sue the Police?

A New Reason You Need a Lawyer When Talking to the Police

Most people think they have a Constitutional right to remain silent.  That is close, but the correct right is not to be compelled to be a witness against oneself.  The Supreme Court made that right clearer when it required police to tell people under arrest that they have the “right to remain silent.”

But, what if you are not yet under arrest?  What if you don’t answer police questions, but just choose to say nothing?  Can that be used against you?  Well, what the Supreme Court gives, they also take away.

In a recent case (Salinas v. Texas for those of you who want to read it), the Supreme Court said you have to not answer questions in a specific way in order to not have your silence used against you.  If you just remain silent, a prosecutor can later tell a jury to infer that you are guilty because you remained silent.  That is, unless you say you are not answering because you are claiming your 5th Amendment right not to say anything.

Confused??  That’s the point.  The Supreme Court has made a simple right not to say anything to the police, and not have it held against you, so difficult that you need to have legal training to understand how to do it.

Specifically, The Supreme Court now says it is a “simple matter” to say that you are “not answering the officer’s question on Fifth Amendment grounds.”  Right.  Lawyers and judges debate what the 5th Amendment means, but it is a “simple matter” for ordinary citizens to know when the 5th Amendment applies, and how to correctly assert the rights it contains.

Again, rights we fought a revolution for are being eroded.  The lesson to be learned is to get a lawyer before talking to the police.  Just refusing to talk can be as bad as saying the wrong thing.  Make sure you are staying silent the right way.

Want to visit someone in prison? You gotta build the prison.

Another unbelievable tax on the poor has been held constitutional.  Arizona started a one-tile $25 fee for anyone wanting to visit a prisoner.  At first, they claimed the fee was for doing a background check, but later admitted the money went in a prison construction fund.

No big deal, you think.  It’s more than that.  People in prison are overwhelmingly poor.  Their families are poor.  Prisoners should be encouraged to keep in contact with their families, especially their kids, in the hope that family units will be kept together and kids will be parented, albeit from prison, and less likely to become “part of the system” themselves.

So what do we do?  Encourage visitation?  Reward visitation? No.  We charge families (kids included) a fee to see their family member in prison.  No big deal, it’s only $25.

For most of us, $25 is not too much to spend, but most of us just do not understand the situation many live with.  Let’s say a prisoner has a wife and 2 kids.  And a mother.  That’s four people who should be encouraged to visit the prisoner.  The prisoner needs connection with his home, and the family needs to see their family member, especially the kids.  But the state is now saying the family must cough up $100, on top of the expense of driving to the prison, and perhaps getting a motel, to see their family member.  For many, many families, $100 is a tremendous amount of money.  If it dissuades even one family from visiting someone in prison, it is too much.

Heck, it would be better policy to pay the prisoner $25 whenever family visits.  It would do more to keep them from being institutionalized than most anything else.  But no, we do just the opposite.  Make it more difficult, even if just a little, to make them less likely to return to prison.

And the fee?  It goes to building more prisons, more prisons to hold more people to pay more fees.

As I often write in these posts….unbelievable.

This one is unbelievable.  A group of Amish citizens had a falling out with another group of Amish citizens.  The first group “attacked” the second group and committed the heinous crime of cutting their hair and beards.

Some may laugh at this, I don’t.  It was an assault and religiously degrading.  Police dutifully investigated.  This is where it gets unbelievable.

The U.S. Justice Department…the same one that is too busy to prosecute even one gun-related crime in Chicago…charges the people who did the hair and beard cutting with a hate crime.  For those non-lawyers reading this, Congress can’t just say an assault, even a hate crime, is a violation of Federal law.  They have to find something in the Constitution (you know, that document that gives only certain, enumerated powers to the Federal government) to authorize such a prosecution.

Well, as usual they found it.  The Commerce Clause.  The U.S. Justice Department determined that because the scissors used to cut the hair were bought in one State and used in another to commit a crime, the Federal Court had jurisdiction.  Voilà!   A Federal hate crime prosecution.

It gets more absurd.  The hair-cutters were convicted and sentenced to up to 15 years in Federal prison.  15 years.  For cutting someone’s hair and beard.

Don’t get me wrong, I agree something should be done to punish the offenders and keep this from happening again.  How about a fine, community service, maybe probation.  But no, not our too-busy-to-put-violent-offenders-in-prison U.S. Attorneys.  They dig their heals in when confronted with despicable, heinous crimes like hair-cutting (not that they don’t shave every day and get regular haircuts).

So now we have multiple people, men and women, in Federal prison for terms that exceed some I have seen for murderers, for cutting the hair and beards of others they have a religious disagreement with.

Absurd.  Unbelievable.  Floyd the Barber better watch out.

SWATing at Flies

I often interview people charged with drug offenses who were arrested by a SWAT team.  Last week, I interviewed a person who was accused of delivering one ounce of marijuana in a very public parking lot and was arrested by black and armor-clad SWAT officers who jumped out of two vans.  Overkill?  Obviously.  Why are SWAT teams used to make arrests when there is no known threat of heavily armed people?  There is a reason, and it has nothing to do with the actual arrest.

The first time I, and probably most people, became aware of SWAT teams was in 1974 when a televised attempt to arrest Patty Hearst and those who kidnapped her was seen from Los Angeles.  The group, the Symbionese Liberation Army, was known to be heavily armed and LAPD wisely used their recently formed SWAT team to raid a house.

Soon after, many very large police departments decided they needed the same firepower, equipment, and training and formed their own SWAT teams.  For these very large police agencies who would utilize such a team often enough to justify the expense, it was a wise move.  However, smaller and smaller police departments decided “hey, we’re big too – we need a SWAT team too!”

As more and more police chiefs in smaller and smaller departments convinced their cities that real bad things can happen in their city too, the cities agreed to finance, arm, and train their own officers in SWAT tactics.  Never mind that an adjacent large city would lend them a SWAT team if was needed (which it may be, every 5 or 10 years).  That would mean the smaller city did not have a “full service” police department.

Now, the inevitable happened.  The smaller cities had expensive SWAT teams that were not being used enough to justify the expense.  The police chiefs had to explain their waste of money – or show that the SWAT teams were being used.  So, they changed the rules.

Now, SWAT teams would be used to serve any search warrant, not just those where armed resistance was threatened.  Now, SWAT teams would be used to make any planned arrest.  Voila!  SWAT teams were needed and the money was wisely spent!  Smoke and mirrors.  Justifying the unjustifiable.  SWATing at flies.

Arizona Medical Marijuana Laws Are Fraught With Danger

Two years ago, voters in Arizona passed a citizen’s initiative that legalized medical marijuana.  The law (actually a series of statutes) legalizes some things, prohibits others, and creates many shades of gray.

When the initiative passed, I became intimately familiar with it, parsing the minutiae to find out exactly what was allowed and what was not.  I found that the laws, written by an activist group, left much to be desired for clarity.

Many people, perhaps over 200, have been referred to me to consult on what is allowed, what is not allowed, and how gray certain areas are.  I have heard many business plans, especially those involving the sparsely-addressed area of “caregiver,” that sought to profit from growing and selling marijuana.  Almost always, the person said he was not “selling” marijuana, but was taking a “donation” for some service.  I won’t go into the plans, or my advice, here.

In addition to consulting on the ins and outs of the laws, I have represented people charged with crimes involving marijuana where the medical marijuana laws impacted the charges.  I have been able to have over 20 felony charges thrown out because of the confusion in the laws.

What I find now, though, is disconcerting.  I am seeing a trend of people either listening to others who do not know the law and doing illegal things and, worse, I see people I have counseled doing it “their way” and being charged with crimes.  I don’t like being in the position of saying to someone charged with a crime “why didn’t you follow my advice?”

The Maricopa County Attorney and the Arizona Attorney General are making every legal effort to have the Arizona medical marijuana laws voided.  This should tell you something; they think marijuana is evil and they will prosecute you if you violate the medical marijuana laws even slightly.

Before you decide to get involved in medical marijuana, please consult with someone who knows the laws, and follow their advice.  If the police show up, realize that they may or may not know the law, don’t consent to any search, and above all don’t talk to the police.  Call a lawyer.

Why The Death Penalty Is Wrong

Legal controversy continuously flows about whether the death penalty is cruel and unusual punishment and prohibited by the Eighth Amendment.  One side says the death penalty was carried out when the Constitution was ratified, and it is therefore legal so long as it is no crueler than the way it was done then.  It seems to these people that hanging or a firing squad is ok, but drawing and quartering is not.  The other side says it is wrong unless there is a 100% guarantee the person being put to death feels nothing, like he is just going to sleep.

This debate is misguided.  The death penalty is wrong.  It is wrong because it is a “perfect” penalty dealt out by an imperfect system.  When I say “perfect” penalty, I mean it is final, 100%, the person is dead regardless of how it occurs.

Last week, I read an article about a man in Louisiana released after 15 years on death row after DNA evidence showed that he was actually innocent. The article quotes Barry Scheck of the Innocence Project stating that this man was the 18th person released from death row after DNA evidence showed he was actually innocent.

Think about it.  Eighteen people, who were tried, found guilty beyond a reasonable doubt by a jury, sentenced to death, had their appeals, and they were in line to die.  And they did not commit the crime.  How many were in the same position and were executed either before DNA was used or simply because no DNA evidence existed that could show their innocence?

How many mistakes are too many?  I argue that one is too many.  We should not be killing our mistakes.  Our system, as hard as we try to make it fair and sure, is imperfect because humans are imperfect.  We should not impose the “perfect” penalty delivered by an imperfect system.  I don’t think there could ever be a perfect system, so we should not impose a perfect penalty.

A little research shows that it costs about twice as much to execute someone than warehouse them in prison for the rest of their lives.  Why?  Lawyers get paid more to defend death penalty cases, some states require two lawyers on any death penalty case, and the taxpayers fund both sides of lengthy appeals.  The lawyers get the money.  But where does the money go if a person is imprisoned for life?  Sure, lawyers get some (always do), but much of it goes to constructing prisons and paying prison guards.  I say construction workers and prison guards are a better use of our money.

So, between a perfect punishment being dealt out by an imperfect system, and it being more economical to warehouse those convicted of the most heinous crimes—if for no other reason than not killing our mistakes—the death penalty is just plain wrong.