Tuesday, July 30, 2013

Theories of Sentencing

A crime has been committed.  The defendant has been charged, tried and convicted.  The next phase: sentencing.  How should this person be punished?  What do we hope to obtain from their sentence?  Why do some people, who are convicted of similar crimes, have such drastically different sentences?

Sentencing, in Virginia and similarly throughout the country, is based on four main theories.  Deterrence, Incapacitation, Punishment and Rehabilitation are all typically considered when determining what a person's sentence should be.

Deterrence - This is meant to deter future crimes by not only this individual person, but also others who may be enticed to commit the same or similar crime in the future.  We, as a society, at least theoretically, want to make sure the sentence deters that individual and other individuals from committing that type of crime in the future.  We want to reduce crime in general in our society.

Incapacitation - This is meant to deter future crimes as well.  We want, again at least theoretically, to remove this individual from society to ensure that this individual does commit crimes in the future.  This begs the question, in my opinion, when is it ever time to allow this individual to return to society?  How do we know we have incapacitated him for long enough?  Nevertheless, this is to be considered when crafting a sentence for a criminal defendant.

Punishment - This is simply meant to punish the individual for the crime committed.  What degree of crime was it? Did they kill someone?  Did they injure someone?  Did they steal $5 or $50,000?  Should this make a difference as to sentence?  Society has determined over time certain crimes they think are more heinous than others and therefore, warrant a harsher sentence.  In large part, although not exclusively, this is played out through the punishment theory.

Rehabilitation - This is meant to help an individual become a "better person" and reduce the likelihood that they will commit crimes in the future.  Some say that not all criminal defendants can be rehabilitated.  Some criminal defendants, however, such as criminal defendants who are addicted to drugs, can be rehabilitated through services such as therapy.

All four of those theories are the basis for crafting sentences in Virginia.  Some apply to a certain criminal defendant than others but all should be considered and addressed by your attorney in a sentencing hearing. 

If you have been charged with a crime, seek the advice of counsel as soon as possible to ensure your rights are protected throughout the entire process. 

Friday, July 19, 2013

Driving and texting - A primary offense

So I'm sure you've all heard that it is now against the law to text while driving; this includes reading emails, by the way.  However, it's not against the law to use your phone as a GPS or to dial a phone number.

First of all, it has been against the law to do these things for quite some time now.  Previously, it was a secondary offense - meaning you could not get pulled over just for texting and driving; you had to be breaking the law in another way as well.  Now, it is a primary offense - meaning if a police officer has reasonable suspicion that you are texting while driving, you can be pulled over.

The big picture is this: there is another offense out there which police officers only have to have reasonable suspicion to pull you over for.  This could lead to much more serious charges once you have been stopped on the basis of reasonable suspicion, but that issue is for another day.

The short term picture is this: how will police officers prove that you were texting or emailing and not dialing a phone number?  Even more interesting, how could they prove you were reading an email?  It's not as if they can pull up the halfway typed text message?  Is it enough to show you have a recent email or text to say that you were reading that on your phone?  That cannot be the case.  But then, how will they prove these types of offenses?  The answer to that question, I do not know but I suspect we will find out in the near future as more and more of these cases go to court and the Commonwealth has the burden to prove their case.

Either way, it is still illegal to text or email on your phone while driving.  And all the police officer needs to pull you over is reasonable suspicion that that's what you were doing.  If you are charged with a violation of this law, you should seek the advice of an attorney prior to your court case to ensure your rights are protected. 

Monday, July 15, 2013

Virginia as a Right to Work State

Virginia, as you may know, is a "Right to Work" state.  The term can have a complicated root and definition but for the purposes of this article, it means in Virginia, you can terminated from your job for no reason at all.  This means that tomorrow morning your boss could decide, for no reason, to fire you.  You would have little, if any, recourse in that situation (although you should always consult with an attorney regarding your specific circumstances).

Although you can be terminated for no reason at all, you still cannot be terminated for improper reasons.  This means you cannot be terminated due to your race, age, national origin, gender, etc.  The problem with this is that it becomes very difficult to prove that you were terminated for an illegal reason because your employer does not have to have any reason at all to terminate you.

If you have been terminated from your job, speak with an attorney as soon as possible to determine what rights you may have. 

Sunday, July 7, 2013

Why Should You Set Up A Trust?

There are many, many types of trusts but for the purposes of this post we are talking about simple trusts, either created by you during your lifetime or created upon your death through your will (see earlier posts regarding wills).

An inter vivos trust, or living trust, is created while you are living.  This is simply set up for you to transfer your property to.  The trust will have a trustee, who controls all of the property in the trust, and a beneficiary.  You many want to set this up for a couple of reasons; the biggest reason is to save your family the trouble of dealing with the probate process upon your death.  Trusts are also more difficult to challenge than a will, though certainly not impossible, and may be a good idea if you expect someone to challenge your will.  Keep in mind, however, trusts can be expensive to maintain and will have certain tax consequences that you should consider prior to creating a trust.

You can also create a trust through your will that will be created upon your death.  You would typically do this if you want to give your property to someone, such as your young children, but want someone more mature, experienced, etc. to handle that property.  In that case, you can set up specifics about how you want the trustee to distribute the property, such as a for education or living expenses, or a certain amount at certain times.  The same consequences mentioned above still apply to this type of trust as well.

If you are looking to create a trust, consult with an attorney to determine the best plan for you and your property.