Sentencing Law FAQ

Determining the punishment of a crime is never done by one person alone. All crimes are defined by statute or codified laws under state and federal laws. This means that the elected representatives in Congress or state legislatures have the first say. 

The criminal justice system sets very important consequences for committing crime. A person who forgets to scan items at the grocery self-checkout might be arrested by law enforcement. They may be facing a judge at an arraignment for theft charges. It would be natural for them to have questions:

  • Will they serve any jail time in the county jail or state prison?
  • Can they just offer to pay for the groceries?
  • What if this is the first offense?

The possible sentencing options for a crime are often provided in a statute, which is codified law, but there are usually a variety of factors that will affect how a criminal defendant will be sentenced. Here are answers to the most frequently asked questions (FAQ) about sentencing law.

What is the difference between a felony and a misdemeanor?

While every state defines these categories in slightly different ways, one thing is universally true:

Misdemeanors are generally crimes that cannot be punished by jail sentences of one year or greater. Many of them are resolved with a fine.

Felonies, on the other hand, can bring multi-year prison sentences or even the death penalty in some states. Conviction in a felony case can also lead to the loss of certain civil rights. A felony conviction can affect one's right to own or possess a firearm, or the right to sit on a jury.

In terms of sentencing guidelines, who determines what kind of punishment a convicted defendant will receive?

Their legislation would determine how light or severe a punishment for a crime can be.

It's up to a prosecutor representing the state or federal government to actually charge the crime. The way a crime is charged can limit or expand the range of punishment. For example, did the district attorney think there was enough force to elevate a misdemeanor theft charge into a felony robbery charge? That decision could have a huge outcome on the sentence much later in the process.

Contrary to what many think, sentencing judges, and not juries, almost always determine sentencing for a convicted defendant. That said, a few states still reserve the choice of alternative sentence for the jury. It is common for the judge to tell the jury not to consider punishment when determining whether a criminal defendant is guilty or not guilty. A mistrial could be declared if it becomes known that the jury considered punishment when determining guilt.

However, there are also some special occasions that require a jury to weigh in on a convicted criminal's punishment. For example, consider some states' rules for capital punishment cases, which are death penalty cases. In those states, judges are not permitted to impose the death penalty without the agreement of the jury.

Where can someone learn the possible punishments for various crimes?

For some offenses, the criminal statute prescribes the punishment. As an example, a state may have a law on the books that:

  • Defines a specific misdemeanor
  • Specifies that the punishment for the misdemeanor
  • Writes out consequences such as "a fine of $1,000, or imprisonment for not more than six months, or both"

On the other hand, some laws define certain activities as misdemeanors but do not specifically define the punishment. In situations like these, the punishment will normally be found in a separate law that sets forth punishments for misdemeanors. The law will have an upper limit on fines and length of imprisonment.

Sometimes, it can be difficult to determine the possible punishments and sentences for crimes by simply reading statutes. The local legal practice may have adopted customs not reflected in the letter of the law. For this reason, it might be necessary to talk with a local attorney to learn about the realistic range of any potential punishments. There are a few reasons for this:

  • Punishment is often defined by a category of crime (e.g. "Class B misdemeanor" or "first-degree felony") with a large range
  • Sometimes, plea bargaining can bring punishments below the minimum sentence, with the substitution of a lesser charge by agreement
  • Local courts or prosecutors might offer pretrial diversion or deferred adjudication options that can help defendants avoid punishment and conviction

Keep in mind that prior convictions can be used to aggravate charges or otherwise support more severe sentencing. Sometimes, special statutes that enhance sentences will apply to the detriment of the defendant. Prosecutors frequently add enhancements to charges if a criminal:

Is it true that people convicted of similar crimes receive similar punishments?

There are some state and federal criminal laws that have mandatory sentences or mandatory minimum sentences. If a criminal defendant is found guilty of one of these crimes, the judge is restricted by law to impose a mandatory sentence or a mandatory minimum sentence. The laws that set out mandatory sentences are put in place by state legislatures and the U.S. Congress.

However, there are only a few laws on the books that have mandatory sentences. In most situations, judges are allowed to take in a number of considerations when determining a sentence for a convicted criminal defendant. For example, judges are often allowed to consider mitigating or aggravating factors such as:

  • A defendant's criminal history
  • The circumstances under which the crime was committed
  • Whether the defendant feels remorse about their actions

Most sentences are similar because they are the result of plea bargains. Well over 90% of criminal cases are resolved before trial. Local prosecutors and defense attorneys negotiate resolutions of cases with an understanding of proportionality. They analyze what the normal sentences for these crimes are in their local courts. Effectively, there is a going rate for a crime. The two sides may try to convince each other that a more or less severe punishment is necessary before reaching an agreement.

What factors do judges take into account when considering punishments?

A judge may not always be limited by a mandatory minimum sentence or some other law narrowing their discretion. In such cases, the defense is normally allowed to bring a plethora of factors to the judge's attention. Here are some examples of factors that judges often take into consideration when determining punishment:

  • The criminal history of the defendant or lack thereof, if the defendant is a first-time offender
  • Whether the defendant was the principal actor in the crime. For example, whether they were the person that held the gun during the robbery. The defendant may have been only an accessory to the crime and was the person who told the principal about an unlocked cash register.
  • The mental state of the defendant at the time of the crime, such as emotional distress, drug addiction, etc.
  • The degree to which anyone was hurt during the commission of the crime
  • The likelihood that a defendant will be able to be rehabilitated through various programs

Of course, all of these factors could be seen as either mitigating or aggravating factors. Mitigating factors are those that lessen a criminal punishment. Conversely, aggravating factors are ones that increase criminal punishment depending on the factual details and the viewpoint of the judge.

For example, a criminal defendant may have a history of committing the same types of crimes over and over. It may appear to a judge that the previous criminal punishments have been inadequate and rule in favor of a harsher punishment. 

Another judge might see this defendant as a product of the system and suggest a new approach. They might order intense substance abuse treatment followed by probation. A probation officer will be assigned to monitor the defendant's progress. They can follow up on the judge's attempt to make a lasting change in the defendant's life.

First-time offenders can almost always escape jail time for minor offenses. In other situations, the length of time or maximum term in prison for a particular crime may be reduced. In some cases, defendants can make agreements with the prosecution that allow them to avoid a criminal conviction or prison term altogether. To be eligible, sometimes these offenders will have to:

  • Perform community service
  • Complete a court-ordered course
  • Pay restitution to the victims of their crimes

These arrangements should always be discussed with a defense attorney or public defender beforehand. They involve waiving certain rights and they can often have tricky requirements or hidden costs. Since public defenders are usually overwhelmed by their caseloads, a private criminal defense attorney might have more time for discussion.

More Questions About Sentencing Laws? Contact an Attorney

If you or a loved one is facing criminal charges or have questions about appropriate sentences, you're not alone. You should obtain legal advice from a local criminal defense lawyer who can explain the law. A good lawyer can also help you to build a strong defense as early as possible when you are facing charges like felony offenses. Even if you lose your case, they can help you seek remedies from an appellate court.

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