CHENANGO COUNTY – Judge Frank B. Revoir, Jr. discussed the sentencing process for sex offender cases.
“Regardless of the public sentiment about how sex offenders should be treated and sentenced,” said Revoir, “as a judge, by law, I am obligated to treat sex offense crimes just like other crimes.”
Revoir said he does not have full say or total freedom to decide the sentence of a defendant unless the defendant goes to trial and is found guilty by jury, or the defendant is on probation, violates the conditions of probation and must be re-sentenced.
“[In those cases] it is my decision and my decision alone. It's under very limited circumstances that the court or the judge has the discretion to sentence the defendant,” said Revoir. “Typically plea bargains are negotiated by the District Attorney's Office and the defendant and his attorney, and in the context of negotiating a disposition, the attorneys will typically discuss the strengths and weaknesses of their cases.”
“With the aid of comprehensive reports about the defendant ... his family background, criminal background, social background, educational background and the particular details of the defense, they attempt to negotiate a disposition that fits the appropriate circumstances,” he added.
Revoir said as judge he helps facilitate those discussions or “conferences,” and as the lawyers “banter back and forth” with their legal arguments about what an appropriate plea deal or “disposition” would be. He said he can provide input on how he perceives the facts of the case or how he thinks the case would turn out if it went to trial.
“The reality is, in our criminal justice system, the prosecutor determines whether or not there is a plea bargain. If the prosecution and defense cannot agree or the prosecution decides not to make an offer, there is no plea bargain and the case goes to trial. There is no constitutional right to a plea bargain,” said Revoir.
According to Revoir, if the prosecutor did not offer plea bargains, he said the system would collapse and implode, and there would be “nothing but jury trials 24/7, 365 days a year.”
“It would be impossible to keep up with the case load. No DA office would take such an unreasonable position across the board,” said Revoir.
When it comes sentencing sex offense cases, like all cases, Revoir said he must be fair and impartial like he promised when he was sworn in. He said he does that by reviewing each defendant's entire history and considering each aspect of their background.
“I consider each part of a defendant's background, because it all matters. I look at the gravity of the offense, age of the defendant, attitude, whether he or she is accepting responsibility,” said Revoir.
Revoir said he also considers the community and the victim when weighing in on plea deals or imposing a sentence. He said he determines what is an appropriate punishment and whether or not the sentence will deter the defendant from repeating future criminal behavior.
“The community and the victim are entitled to retribution for the illegal conduct the defendant engaged in and that's the punishment aspect, but another part is that we hope the sentence adds some sort of deterrent effect,” said Revoir. “Sentencing isn't just punishment for the particular conduct being addressed. If punishment was the only purpose of sentencing, then what's the point? They are just going to take their punishment and repeat the same behavior.”
“When you sentence someone to jail, you hope they will never want to go to jail again or that in working with all the terms and conditions of probation, they are deterred from engaging in the same or similar conduct. It's a delicate balancing act, and all of that is factored into what's an appropriate sentence or disposition,” he added.
Regarding sex offenses specifically, Revoir said in the State of New York, a “tremendous number” of offenses fall under the definition of a sex crime. He said the term sex offense or sex crime covers a broad spectrum of conduct and behaviors.
“While all of the offenses are admittedly what the community would label vile and disgusting, there, never the less, is a huge variation in the degree of egregiousness. This is where, particularly with sex offenses, the community's immediate reaction often is that whoever it is [that is accused of a sex offense] should be locked up for life,” said Revoir.
When in it comes to other types of cases, Revoir said people are more likely to feel that the court should consider all the mitigating factors before imposing a sentence.
“We think nothing is more disgusting than sex offense, and we think they are horrible, disgusting people and should all be thrown in prison and thrown away,” said Revoir. “But I can't lump all sex offenders together and throw them all away just because people feel that way. I took an oath that all cases would be judged individually on their merits, including the particular details the public does not see and is not out there when a plea is entered.”
Revoir said the difficulty with most sex offense cases is that often times the evidence necessary for the prosecution to get a conviction is not there.
“There are typically months or years between the alleged incident and the time it's revealed, or the family or victims refuse to testify at the time it goes to trial. That's a major problem, because often times you do not have other physical evidence like you do with many other offenses. There are typically no witnesses, no physical evidence... The prosecution of those cases is extremely difficult,” said Revoir.
Because of the common sex offense issues of time, lack of evidence, the victim's young age or refusal to testify, lack of physical evidence, etc., Revoir said that is another reason why many sex offense cases do not go to trial and a plea deal is often worked out instead.
“Like with any other offense, the prosecution and defense discuss the strength and weaknesses of their cases and work out a disposition. Unless I, as the judge, feel that the reasoning behind the agreement is unethical, there is no legal basis for me to not honor their agreement,” said Revoir.
He said if he were to challenge an agree upon disposition without a justifiable reason, he said the prosecution could refuse to prosecute.
“The People could stand up and say 'we rest,' then it's dismissed. I don't have any leverage. The prosecutor is elected by the people and that's his job, whether or not he wants to offer a deal,” said Revoir. “Except under very limited circumstances do I have any reason to object to what the prosecution and defense has worked out. I cannot force a district attorney to go to trial or force a prosecutor to make a better offer.”
Revoir said his job, with regards to plea deals, is to help facilitate the process of the prosecution and defense reaching an agreement that satisfies the public's need for retribution and to make sure the defendant is being treated fairly.
“My role is to make sure the people and the defendant get a fair trial. Day in, day out, defendants are taking pleas and being sentenced,” said Revoir. “With regards to sex offenses, from the public's perspective, unless they see someone going to prison, they think there must be something corrupt going on.”
“The public doesn't see all the different factors that come into play. Sex offense cases are the most difficult types of cases to prosecute because often times there is a lapse of time, lack of physical evidence or witnesses, and the reluctance of the victim or the victim's family to actually testify... and for good reason because often times it will create further trauma for the victim,” he added.
Revoir said in most cases, especially sex offense cases, a defendant that receives a sentence “that makes people scratch their head” or that does not seem to fit the crime, typically had issues such as lack of evidence, no witnesses or other mitigating factors which were not released to the public.
“With the Sex Offender Registration Act, even in cases where the punishment seems insufficient... the community is protected. When a defendant takes a plea for a sex offense, he may only receive a short incarceration sentence, but he often will also be sentenced to 10 years of probation and have to register as a sex offender for 20 years, 30 years or even for life,” said Revoir.
The County Judge said because of the particular issues specific to sex offense cases, the most appropriate disposition that can be agreed upon or the best sentence that can be imposed is one that at least better protects the community.
“On paper it looks like a slap on the hand, but in essence the prosecutor has gotten something that protects the community, where if it had gone to trial it might have been an acquittal,” said Revoir.