Richard D. Kirk

We write in response to the March 30 article, "Judge said du Pont heir 'will not fare well' in prison." The article was misleading; it misinformed the public about the sentencing process and did a disservice to Judge Jan R. Jurden and the Superior Court. By the way, this sentence did not just become public this month, as the article says. The sentencing in question occurred in a public hearing in 2009 and court records of it have been publicly available ever since.

The main focus of the article (and the headline, and the accompanying graphic) concerns a notation found in a section of the sentencing order to the effect that this "Defendant will not fare well in Level 5 setting [prison]." The article assumes this note reflects Judge Jurden's own personal feelings. In that, that is speculative and misleading. The article does not tell the reader that the notation actually appears in a section of the sentencing form headed "Notes," where a judge normally lists comments made at the hearing by the prosecutors and defense counsel and the Probation and Parole officers.

Here, it is highly likely that the suggestion that "Defendant will not fare well in Level 5 setting" had been made by one of the attorneys or other participants at the hearing. In the only place on the sentencing order where the judge is required to list the aggravating and mitigating factors actually considered in the sentence (a part of the order not discussed in the article or pictured in the graphic), Judge Jurden listed "treatment need exceeds need for punishment." That stands as the only factor clearly considered by the court and is entirely consistent with Delaware's Sentencing Accountability Commission guidelines.

The attention paid to the comment about "faring well" ignores an important fact here. This matter came to Judge Jurden upon a plea bargain to a single charge that did not require a mandatory prison term, and the Attorney General's office which negotiated the plea had recommended probation over prison. Although judges are not bound by a sentencing recommendation from the Attorney General's office, it would have been unusual to depart from it. The judge had before her not only the plea agreement and the Attorney General's recommendation of probation, but also the confidential report from an extensive pre-sentence investigation that would have covered the defendant's mental and physical health, prior educational, employment and criminal background, and other factors. That report is not public and so the judge would have had access to far more information than does anyone commenting on her sentence after the fact.

Judge Jurden imposed a sentence of eight years in prison suspended in favor of eight years of probation with strict conditions. Those conditions included the completion of a rigorous residential and outpatient treatment program for sex offenders, close monitoring during the entire probation with zero tolerance for violations (which would reinstate the prison sentence), and no contact with children (including the defendant's own children). This defendant has completed the sex offender program and has spent more than five years on intensively monitored probation under the supervision of Delaware's highly trained Probation and Parole office with no violations of parole.

Looking at this matter solely from the 2009 perspective, before the private damages lawsuit was filed, virtually everyone would have considered this an appropriate sentence. It was not an unusual sentence under the circumstances presented and would have been available to comparably situated defendants sentenced by this judge and other judges of the Superior Court. Mischaracterizing the 2009 court record as the article did to portray the sentence as somehow inappropriate was unfair to Judge Jurden and the Superior Court.

The imposition of sentence in criminal matters is vitally important not just to the individual defendant but to the community. It is one of the hardest things a judge does. That is why such time and effort is invested in the process. Highly qualified professionals are involved at every stage of the process. That is why attempts to analyze a sentence long after the fact without access to the entire process is both dangerous and unfair.

Richard D. Kirk chairs the Delaware State Bar Association Committee on Response to Public Comment.