In a world where judges of criminal courts have increasingly less discretionary power over sentencing, the downward departure option is often the best course of action for a defendant to get a reduced sentence. While there are several requirements that must be met in order to obtain a downward departure, it is very often the best opportunity at a reduced sentence.
Downward departure is a two step process in which the court must first of all determine if there is a valid legal ground to warrant a departure such as the need for restitution outweighing the need for incarceration. Additionally, the legal ground provided must be supported by a preponderance of evidence. Some other factors that would supoort a downward departure include 1)the offender was a minor participant in the criminal conduct; 2)the offender's understanding and grasp of the gravity of what happened is impaired; 3)the relative youth of the offender.
Once this has been established, the court must decide if it should depart from the sentencing guidelines. This is where judicial discretion can play a role as well as the skill of the criminal trial attorney arguing for the downward departure. The attorney's role is crucial here because the judge's decision may depend upon the skill of the attorney and the quality of his/her argument before the court. Human factors such as remorse, willing to make restitution, and past history also play a role in determining how a particular judge may rule.
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