What Are the Options for Criminal Sentencing?

Many people think of incarceration when they hear about criminal sentencing. But it's only one of several options available to judges in crafting an effective sentence.

By , J.D. · UC Berkeley School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law

Criminal statutes often include a variety of sentence options for a crime. The aim of the sentence may be punitive, rehabilitative, or both. A judge can consider a variety of factors when sentencing, including the circumstances of the crime and the background of the defendant. Possible sentences commonly include incarceration, probation, community service, restitution, and fines. Judges may impose one or several of these options.

In many situations, judges maintain a lot of discretion when handing down sentences. Other times, the statutes determine the punishment, and judges don't have much flexibility. This article covers how sentencing works and common options for criminal sentences.

Does the Judge or Jury Sentence the Defendant?

Judges typically sentence defendants, not juries. The jury decides whether a defendant is guilty or not guilty, and in most states, that's generally where its role ends (unless it's a death penalty case). A few states authorize juries to sentence a defendant or make sentencing recommendations to the judge. But, in most instances, once the defendant pleads guilty or a jury hands down a guilty verdict, the judge will announce a sentence or schedule a sentencing hearing.

How Does Sentencing Work?

Judges have a fair amount of discretion (leeway) when it comes to sentences. However, they are still bound to limits placed in the law.

Criminal Laws and Sentences

State and federal lawmakers (legislators) define crimes and their punishments in statutes (the law). Generally, these statutes will provide a maximum sentence for a crime and, sometimes, a minimum sentence. The law might also authorize a judge to decrease or increase those minimums and maximums depending on the circumstances.

Deciding the Sentence

Within the limits of these laws, the judge decides what the sentence should be based on the facts of the case and the defendant's circumstances and prior criminal history. Judges cannot go outside the punishment constraints set in the statute. (Or, if they do, a defendant can appeal.)

Often, particularly in misdemeanor cases, a judge will issue a sentence directly after the defendant pleads guilty (or no contest) or after the jury returns a guilty verdict. If the defendant faces significant incarceration time, such as in a felony case, the judge might schedule a sentencing hearing days or even weeks after the defendant's conviction.

What Factors Are Considered at Sentencing?

Judges can consider mitigating and aggravating circumstances when sentencing a defendant. Mitigating circumstances tend to support a lesser punishment, while aggravating circumstances might persuade a judge to lengthen the sentence or refuse probation.

Mitigating Factors in Sentencing

Defense attorneys will often present mitigating factors in a bid for leniency. Mitigating circumstances can include things like a defendant's life situation or difficult past, substance abuse issues, minor role in the crime, age, or behavioral health issues. If no one was hurt during the commission of the crime, the defense attorney will likely point to this fact as a mitigating factor.

Aggravating Factors in Sentencing

Prosecutors might argue aggravating circumstances exist that justify imposing a harsher sentence. They might present evidence of repeated similar offenses by the defendant, the use of violence or cruelty, a particularly vulnerable victim, or any other factors that make the crime more serious.

Victim Impact Statements and Probation

The judge will listen to the attorneys' arguments and may also take into consideration any victim impact statements or probation reports. Victims may choose to tell the judge how the crime impacted their lives by reading or submitting a statement to the court. Probation officers will provide the judge with details about the defendant's personal and criminal history.

What Are the Different Types of Sentences?

A state's law (or federal law) dictates the types of sentences judges may impose, such as incarceration, probation, alternative sentences, and more. Judges can typically impose one or multiple sentencing options.

Incarceration: Jail or Prison Time

Sentences vary dramatically in length from a few hours in jail to life in prison, or even the death penalty. Often, the sentence length determines where the defendant will serve their time. People sentenced to less than a year's incarceration (often misdemeanors) will generally go to a local jail. State and federal prisons house inmates with longer sentences—often a year or more (usually felonies).

But a criminal sentence of incarceration doesn't always mean time behind bars. Especially with first offenses or in less serious cases (like misdemeanors or low-level felonies), judges may use sentencing alternatives.

Probation: Serving Time in the Community

Instead of sending a defendant to jail or prison, the judge may place the person on probation. Probation is an alternative to incarceration which allows someone to serve all or part of their sentence in the community. When judges sentence someone to probation, they often suspend (hold off on) a jail or prison sentence and condition that suspension on the defendant's agreement to be placed under supervision and abide by certain terms.

Conditions of probation often include obeying all laws, reporting to a probation officer, paying fines or restitution, not using drugs or alcohol, avoiding people or places, and not leaving the jurisdiction without permission. Violating any condition allows the judge to revoke probation and the suspended sentence. Probation can be the only sentence a defendant receives, but often, judges sentence probation in combination with other sanctions, such as fines, restitution, or community service.

Fines and Restitution: Financial Penalties of Crime

On top of incarceration, a judge can order a defendant to pay fines and restitution—making a criminal conviction very expensive. For some low-level crimes (such as a traffic ticket), a fine might be the only punishment. Judges tend to have a lot of discretion in setting the fine amount, subject to the maximum set in law.

Restitution represents another financial penalty for a conviction, but unlike fines that go to state or local governments, restitution compensates a victim for their losses due to the crime. Judges often order restitution in cases where the defendant has stolen or damaged property or caused emotional or physical harm. The amount of restitution depends on the losses sustained by the victim.

Community Service: Giving Back

Judges can order community service as a condition of probation, or for more minor offenses, a sentence might only be community service. Community service sentences include things like roadside cleanup, speaking to groups about the dangers of criminal behavior, or helping out at homeless shelters. Sometimes a judge will order community service instead of a fine when the defendant doesn't have the ability to pay fines and fees.

Other Sentencing Options

More and more frequently, judges are looking beyond traditional forms of incarceration and probation for additional sentencing options, particularly in nonviolent cases. Some examples include:

  • ignition interlock devices (a breathalyzer installed in the car of someone convicted of drunk driving where the car won't start if alcohol is detected)
  • weekend confinement or work release (allows defendants to continue work or school)
  • house arrest or electronic monitoring
  • diversion (keeps the defendant out of court and instead requires completion of a program often run by the prosecutor)
  • treatment courts aimed at helping people with mental health or addiction (like drug courts), and
  • restorative justice (a program where the defendant and victim work together with the help of a mediator to find a satisfactory solution).

Talk to a Lawyer

If you are facing a criminal sentence, it's important to talk to a lawyer in your local jurisdiction. A criminal defense attorney can help explain the different sentencing options that match your situation and help you achieve the best outcome at a sentencing hearing.

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