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Sentencing Law FAQ

Someone who is not involved in the day-to-day workings of the criminal justice system might be at a loss to understand the gravity of potential consequences for committing a crime. A person who forgets to scan items at the self-checkout in the grocery store might suddenly find themselves arrested and facing a judge at an arraignment for theft charges. It would be natural for them to have questions: "Will they serve any jail time? Can they just offer to pay for the groceries? What if this is the first offense?"

While the possible sentence for a crime is often provided in a statute, there are usually a variety of factors that will affect how a criminal defendant will be sentenced. Here are answers to the most commonly asked questions about sentencing law:

What is the difference between a felony and misdemeanor?

While every state defines these categories in slightly different ways, one thing is universally true: Less serious crimes are referred to as misdemeanors, and more serious crimes are called felonies.

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

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

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

Determining the punishment of a crime is never done by one person alone. First, all crimes are defined by statute, which means that the elected representatives in Congress or state legislatures had the first say in how light or severe a punishment for a crime can be.

Then, it is up to a prosecutor representing the state or federal government to actually charge the crime, and the way a crime is charged can limit or expand the range of punishment. For example, did the prosecutor 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.

Then, contrary to what many think, judges, and not juries, almost always determine sentencing for a convicted criminal defendant (although a few states still reserve the choice of sentence for the jury). It is pretty common for the judge to tell the jury not to consider punishment when determining whether a criminal defendant is guilty or not guilty. Indeed, 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, in some states' rules for capital punishment cases (death penalty cases), 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 and also specifies that the punishment for the misdemeanor shall be "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 (with an upper limit of 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 ("Class B misdemeanor" or "second-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 used a firearm, victimized a domestic partner or family member, or has a criminal record.

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

There are some state and federal criminal laws that proscribe "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 factors such as a defendant's criminal history, the circumstances under which the crime was committed, and even whether the defendant genuinely feels remorse about their actions.

Most sentences are similar, however, because they are the result of plea bargains. Well over ninety percent of criminal cases are resolved before trial, and local prosecutors and defense attorneys negotiate resolutions of cases with an understanding of what the normal sentences for these crimes are in their local courts. Effectively, there is a "going rate" for a crime, and 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?

If the judge is not limited by a mandatory minimum sentence or some other law limiting their discretion in sentencing, 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 of history, if the defendant is a first time offender)
  • Whether the defendant was the principal actor in the crime (i.e. the person that held the gun during the robbery) or only an accessory to the crime (the person that told the principal about an unlocked cash register).
  • The mental state of the defendant at the time of the crime (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" factors (ones that lessen a criminal punishment) or "aggravating" factors (ones that increase a criminal punishment) depending on the factual details and the viewpoint of the judge.

For example, if a criminal defendant has a history of committing the same types of crimes over and over, it may appear to a judge that the previous criminal punishments had been inadequate and weigh in favor of a harsher punishment. Another judge might see this defendant as "a product of the system" and suggest a new approach, such as intense substance abuse treatment followed by probation, in an attempt to make a lasting change on the defendant's life.

First-time offenders can almost always escape jail time for minor offenses, and in some cases, they can make agreements with the prosecution that allow them to avoid a criminal conviction altogether. Sometimes these offenders will have to complete a court-ordered course or pay restitution to the victims of their crimes to be eligible. These arrangements should always be discussed with a defense attorney beforehand, as they involve waiving certain rights and they can often have tricky requirements or hidden costs.

More Questions About Sentencing Laws? Contact an Attorney

If you or a loved one is facing criminal charges or have questions about sentencing, you should contact a local criminal defense lawyer who can explain the laws as well as your rights. A good lawyer can also help you to build a strong defense as early as possible when you are facing charges.

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