Criminal Sentencing

Sentencing in criminal cases varies between federal law and state law. In federal court, judges must consult the federal sentencing guidelines to impose an equitable sentence. Some state courts use presumptive (pre-determined) sentencing guidelines for felonies and misdemeanor criminal charges.

Sentencing for criminal offenses can range from:

• Community service
• Probation
• Prison term
• Death penalty

The article below identifies aggravating factors in criminal law that can influence sentencing. It also looks at mitigating factors that defense lawyers bring for the criminal court's consideration.

The penalties for a crime depend on many details. You may want to talk to a criminal defense attorney about minimizing your sentence or avoiding a conviction. 

When Criminal Sentencing Happens in the Legal Process

For minor infractions and misdemeanors, sentencing usually takes place immediately after conviction.

If a defendant pleads guilty to a more serious crime, a specific sentence is usually negotiated between the prosecution and defense. That negotiation is a plea bargain.

A judge determines the sentence when there is no agreement between the parties at the time of the plea (an open plea) or after a guilty verdict in a jury trial. But in some states, the jury has the authority to decide the prison sentence within the criminal statute limits.

Factors Considered in Criminal Sentencing

Before handing down a sentence, the sentencing judge usually receives input from the prosecutor and the defense. According to the Federal Rules of Criminal Procedure, the judge must also receive a presentence report from the probation department, which assigns a probation officer to conduct a presentence investigation.

The presentence report typically includes:

• The defendant's criminal record (e.g., prior felony convictions)
• A classification of the misdemeanor or felony offenses (Some jurisdictions classify the criminal conduct to indicate the level of seriousness, e.g., a Class A felony or first-degree murder.)
• The punishment range (e.g., Class A felony is punishable by life in prison or death)

At the sentencing hearing, victims of the crime and their loved ones are encouraged to speak about the impact of the crime. They may also submit written statements to the judge.

In addition to all of the above input, the judge will consider additional sentencing factors, such as:

• The nature of the crime and its circumstances
• Whether the offender has any criminal history (e.g., prior drug offenses)
• Whether drug or alcohol addiction was a factor, in which case, the defense will likely argue that treatment would be a more appropriate sanction than punishment with a jail term
• Whether the defendant was the main offender or an accessory (someone who assists the main offender)
• Whether the offender was under great personal stress or duress when they committed the crime
• Whether anyone got injured or the crime was particularly likely to result in great bodily injury
• Whether the offender was particularly cruel to a victim or particularly destructive, vindictive, etc. (which may lead to a sentence enhancement)
• Whether the offender displayed remorse or regret

Alternative Sentencing Options

Not every conviction means a trip to prison. Judges, in most cases, have some discretion when determining a sentence. They can also choose sentencing alternatives, but some are often available as part of a plea bargain. They are not available for the judge to order after a trial or an open plea.

The judge could sentence a guilty defendant to:

• Fines or restitution
• Community service
• Probation
• Deferred adjudication or pretrial diversion (The defendant participates in a rehabilitation program, e.g., drug treatment. Upon successful completion, the charges get dismissed.)
• Unconditional discharge (The court finds the defendant committed a crime and receives a criminal conviction, but the judge does not order jail time or a fine.)

Types of Sentences

If the defendant has been found guilty of several charges, which is common, there may be several sentences. The judge has many different types of sentences to consider:

• Concurrent (at the same time)
• Consecutive sentences (one after another)
• Determinate (a fixed amount of time)
• Indeterminate (a minimum and maximum amount of time)
• Deferred until a later time
• Suspended sentence

Restrictions on Sentencing

Some federal and state sentencing laws require mandatory sentences, depending on the crime. Sentencing laws tend to establish maximum sentences and, in some cases, minimum sentences. Mandatory sentences are the result of legislative efforts to address judicial leniency, harshness, or judicial inconsistency in criminal sentencing.

The most notable mandatory sentencing laws are the "three strikes" statutes. Three strikes laws require a judge to give a life sentence to anyone convicted of a serious violent felony if they had two prior convictions and one was for a serious felony.

Defense attorneys have brought constitutional challenges against mandatory life sentences. They claim that they violate the Eighth Amendment's protection from cruel and unusual punishment. Three strikes law punishment receives criticism for being disproportionate to the crimes committed. However, when these sentences have been challenged in court, most (but not all) cases have been upheld as constitutional.

However, there are some limits. In Miller v. Alabama, the Supreme Court ruled that a mandatory life sentence without the possibility of parole for a crime committed by a juvenile was unconstitutional. Each state has its own state sentencing guidelines. They cover mandatory minimum sentences and the use of parole and probation, among other things.

Contact an Attorney if You Have Questions on Sentencing Laws

It is important to have a qualified criminal defense attorney involved in your case as early as possible. There are many stages where an attorney can influence the direction of a case and achieve more favorable criminal sentencing.