Sentencing Thru Release
Delaware’s sentencing structure is often confusing. If you have any questions about the sentencing order or the possibilities for early release, you should contact the prosecutor or the Victim/Witness program.
Remember you have the right to be in contact with the authorities concerning what happens to the offender after conviction.
After conviction through a plea agreement or trial, the Judge may order a Presentence Investigation Report. A full Presentence Investigation Report includes a summary of the offense, the offender’s background and victim loss and impact information. However, there are times when a partial report is ordered which only includes the offender’s criminal history.
If a full Presentence Report is ordered, you may receive a Victim Loss/Impact form from the Presentence Investigator. This is an opportunity for you to make people in the system aware of the impact a crime has had on your life. You may also call the Presentence Investigator to provide additional information.
Felony sentencings are held in Superior Court. A sentence may involve a period of time on probation, on home confinement, in a halfway house, in prison and any other special conditions. Many sentencing hearings are held approximately 60 days after a finding of guilt. Sometimes sentencings are held immediately, i.e., right after a plea is accepted or a conviction at trial. If this occurs, no Presentence Investigation is ordered and you will not be sent a Victim Loss/Impact form. Therefore, it is important to contact the prosecutor soon after indictment or filing of an information to give them your impact and restitution information. If an immediate sentencing is held, the prosecutor can speak on your behalf.
Victims of certain crimes may speak at the sentencing hearing. Ask the prosecutor if this is possible in your case. The sentencing hearing is open to the public.
Upon conviction at trial, the defendant has the right to appeal various aspects of the case. Appeals usually claim a violation of due process. This means that a mistake in the procedure was made during arrest, investigation or the trial. The court which decides the appeal can do several things:
1) overturn the conviction, 2) send the case back for a new trial, 3) send the case back for re-sentencing, or 4) affirm the conviction. Most appeal work is done through written legal briefs without hearings in court. If the defendant has accepted a plea agreement and did not go to trial, he/she has no right to an appeal.
The defendant may also file a motion for sentencing reduction which must be filed within 120 days. This is to request that the sentence be reduced. A hearing is not required. Judges sometimes grant a motion for sentence reduction after the 120 days has expired. You can request to be notified of any sentence modifications.
Also, under the Truth in Sentencing guideline for exceptional rehabilitation, the Department of Correction can petition the court to modify the sentence of an offender. More information about this procedure is available under the Truth In Sentencing section of the booklet.
Unfortunately, victims do not have the right of appeal through the court process if they are dissatisfied with the decision of the prosecutor, jury or judge.
Truth In Sentencing
Truth In Sentencing (TIS) is the sentencing structure that went into effect in 1990. It applies only to those offenders sentenced after 1990. Truth in Sentencing is designed so that more non-violent offenders are placed in alternatives to incarceration, while violent offenders spend a longer time in prison. All prison sentences of a year or more will be followed by at least six (6) months of structured community supervision. TIS changed the law in several ways.
- It abolished a “right” to parole.
- It limited the amounts of good/merit time that an incarcerated offender could earn in a year’s time.
- It reduced the maximum penalties that can be given for most crime categories and it created two new felony classifications.
TIS is structured so offenders will be incarcerated for the length of the sentence. Under Truth in Sentencing, the amount of good/merit time an offender can earn in a year is 90 days. Therefore, if a person receives a two year sentence, they could possibly be released in one year and nine months with earned good/merit time.
Under Truth in Sentencing, the Department of Correction is authorized to seek modification of an offender’s sentencing. Such a request must be based on “good cause,” which can include an offender’s exceptional rehabilitation while in prison, serious illness, prison overcrowding and other factors. The Department of Correction must certify eligibility through an internal process. The recommendation is then forwarded to the Parole Board who will do their own review. The recommendation of the Board is then sent back to the original sentencing judge who may decide to have a hearing or make a decision based on the information provided. The judge makes the final decision on the sentencing modification. This usually is done by documentation and/or reports and is not open to the public.
Sentac Sentencing Levels
In Delaware, the General Assembly created the Sentencing Accountability Commission (SENTAC) to study and recommend a practical solution to the problems of the prison system. SENTAC developed a new system of sentencing standards designed to incarcerate violent offenders while providing alternatives for non-violent offenders.