For those of you who don't know, Virginia's sentencing guidelines are discretionary. Now, I don't mean discretionary in the federal sense where all the departures downward are rejected by the appeals courts and all the departures upward are rubber stamped. No, they are truly discretionary and the only time the judge has to answer for them is when she has to go back before the General Assembly every so many years, hat in hand, and ask for her job back.
Generally, I am content with this system. Departures are relatively rare. The one thing I notice is that I've never seen downward departures take more than 2 years off a recommended sentence while upward departures are almost universally massive.
Case in point: A car-jacker is recommended to get between 7-12 years in prison. It's a nasty crime and he definitely deserves the upper end of the guidelines - maybe even a departure upward by a few years (let's say up to 20 years). The judge allowed the prosecutor to put on evidence of a murder charge the defendant is facing, but which hasn't gone to trial yet. Then the judge says the magic words for the record: "I won't consider the evidence of the murder charge in sentencing." Gotta make sure that's in the record because otherwise there might not be sufficient cover for the appellate courts to say she didn't consider it. And why would there be concern that the appellate courts are going to need cover to uphold this sentence? Because the judge then departed upward 31 years.
Yeah, she never gave that murder charge a second thought.