Criminal Sentencing

Criminal sentencing can range from probation and community service to prison and even the death penalty. This article looks at the factors that can influence sentencing.

Criminal Sentencing Basics

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 has usually been negotiated between the prosecution and defense. That negotiation is called 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. (Although, in some states, the jury is empowered to decide the sentence within statutory limits.)

Before handing down a sentence, the sentencing judge usually receives input from the prosecutor and the defense. The judge might also receive a "pre-sentence report" from the probation department.

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
• Whether drug or alcohol addiction was a factor, in which case the defense will likely argue that treatment would be more appropriate than punishment
• Whether the offender was the main offender or an accessory (someone who assists the main offender)
• Whether the offender was under great personal stress or duress when he or she committed the crime
• Whether anyone was injured or the crime was particularly likely to result in injury
• Whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc.
• Whether the offender displayed remorse or regret

Choice of Sentences

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 only 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
• Deferred adjudication or pretrial diversion: In this case, the defendant is ordered to participate in a rehabilitation program (usually anger management or drug treatment). If they complete the program successfully, the charges against them are dismissed.
• Probation
• Unconditional discharge: In this case, the judge finds that a crime was committed, but 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) or consecutive (one after another)
• Determinate (a fixed amount of time) or indeterminate (a minimum and maximum amount of time)
• Deferred until a later time
• Suspended sentence
• And others

Often the judge will also consider conditions at the facility where the incarceration will occur.

Restrictions on Sentencing

There are federal and state sentencing laws that 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 or 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 laws have also been criticized for being disproportionate to the crimes committed, but when these sentences have been challenged in court, most (but not all) cases have been upheld as constitutional.

There are some limits, however. In Miller v. Alabama, the Supreme Court ruled that a mandatory life sentence 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,

Charged With a Crime? Talk to an Attorney

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.