Factors Considered in Determining Sentences

Someone who committed a crime for the first time may not receive the same sentence as someone with a prior criminal record. Someone charged with a DUI may or may not receive the same punishment as someone charged with domestic violence.

Many different factors affect sentences. Each case has unique details to consider. Talk to a criminal defense lawyer about the penalties you might face for a criminal charge. They can help you take steps to try to reduce or avoid penalties. 

A Defendant’s Rights in the Criminal Process

A court must always respect the constitutional rights of the suspect or defendant. Under the Eighth Amendment to the U.S. Constitution, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Fourteenth Amendment extends this protection to the states.

Other laws set a more specific due process for criminal sentencing. Title 18 of the United States Code governs sentencing in federal courts. Similarly, state laws and constitutions govern state court sentencing procedures.

Statutory Criminal Penalties

Criminal law statutes enumerate crimes. The provision that identifies the specific crime will also determine the appropriate punishment. Punishments will vary based on whether the crime was a serious offense, a misdemeanor, etc.

For example, a statute may read, "Violation of this statute constitutes a misdemeanor, punishable by a fine not to exceed $500 or imprisonment not to exceed 30 days, or both." The sentencing judge will decide which of these penalties would be most appropriate for the particular case.

Aggravating and Mitigating Circumstances

Before sentencing, a judge will consider certain "aggravating" or "mitigating" factors. These factors help determine where a punishment should fall along the prescribed spectrum.

Additionally, a presentence report by a probation officer is often considered when coming up with a sentencing range.

What Are Aggravating Factors?

Aggravating circumstances are factors that increase the severity of a criminal act.

Typical aggravating factors considered by judges include:

• Heinousness of the crime
• Whether it was a violent offense
• The seriousness of the offense
• Lack of remorse
• Prior conviction in criminal history
• Whether the defendant has committed similar crimes over a period of time

In Cunningham v. California, the Supreme Court held that a jury may only use aggravating circumstances to impose a more severe sentence when the jury found those factors true beyond a reasonable doubt. Also, prior convictions need not be proven beyond a reasonable doubt.

What Are Mitigating Factors?

Mitigating circumstances lessen the degree of criminal culpability.

Common mitigating circumstances considered by judges include:

• Whether the defendant is an accomplice
• Whether the defendant is a minor at the time of the offense
• Whether another individual induced the defendant to commit the crime

Eighteen states consider victim wrongdoing as a mitigating factor. Victim wrongdoing is when the victim consented to the criminal conduct, caused the crime, etc.

The Defendant’s Own Words

Under the Federal Rules of Criminal Procedure, before imposing a sentence, the court must allow the defendant’s lawyer to speak on behalf of the defendant. The court will address the defendant and ask them if they wish to make a statement on their behalf. They will also ask the defendant to present any information to reduce the punishment. The prosecutor will also have an opportunity to speak to the court.

Most state procedural statutes and rules contain similar provisions. In many state courts, a victim or a victim’s survivors may also be able to address the court. They may recommend leniency or strictness for the sentence.

Other Sentencing Factors

Other significant factors considered in determining sentences include:

• Deterrence: The judge will usually select a sentence that will deter the defendant (and any other future defendants) from future criminal activity.
• Mandatory and Maximum Sentences: Some crimes carry mandatory minimum sentences. For example, the average mandatory minimum penalty for drug offenders is about 125 months. Other crimes carry maximum sentences. 
• Life Sentences: The United States Sentencing Commission states that a life sentence is the maximum sentence. This applies to federal criminal laws, such as offenses involving drug trafficking.
• "Three Strikes" Laws: "Three Strikes" laws can affect sentencing. A convicted felon may be sentenced to mandatory life in prison.
• Plea Bargaining: Sentence bargaining, a type of plea bargain, involves a guilty plea from an offender in exchange for a lower sentence.
• Hate Crimes: Some laws increase the sentence for crimes motivated by identified factors. These factors include race, gender, or sexual orientation.

Discuss Avoiding Criminal Penalties with a Defense Attorney

Only the judge can determine your sentence. Judges listen to the jury’s recommendation but do not have to follow it.

There are many factors that a sentencing judge can take into account when deciding the appropriate sentence for you. Speak to a local criminal defense attorney to learn more about your state’s sentencing decisions. They will be happy to discuss your prior criminal history and criminal case.