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.

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 common types of criminal sentences.

Types of Sentences

A state's law (or federal law) dictates the types of sentences judges may impose. While all jurisdictions differ, many use either a determinate or indeterminate sentencing system. Some use a combination of both.

Determinate Sentencing

When imposing a "determinate" sentence, the judge will order an exact amount of incarceration time, such as 10 days or 10 years. This figure represents the maximum amount of time the defendant may serve behind bars. Many defendants, however, will serve less than the determined time for a variety of reasons, including probation, parole, good behavior, or facility overcrowding.

Indeterminate Sentencing

When judges issue "indeterminate" sentences, they provide the range of time to be served but allow the prison officials—usually a parole board—to decide on the actual release date. An indeterminate sentence could be something like: Melissa shall serve not less than 5 nor more than 10 years in the state penitentiary. Indeterminate sentences are usually only for felony crimes where the defendant is going to state prison.

Concurrent or Consecutive Sentences­­­

If a defendant is convicted of more than one crime, the judge will need to specify whether the sentences will be served concurrently or consecutively. A concurrent sentence means that the sentences run at the same time, and a consecutive sentence means the sentences are served separately, one after another. For instance, if someone pleads guilty to two felonies each with a sentence of 10 years, the type of sentence will determine whether the total time served is 10 years (concurrent) or 20 years (consecutive).

Judges will often look to the defendant's record and the severity of the circumstances surrounding the crime to decide whether the sentences should be concurrent or consecutive. The law might also state how the sentences should be served.

Incarceration Options

When a judge imposes a sentence of incarceration, the defendant may serve that time in either jail or prison, depending on the length of sentence and whether the crime is a misdemeanor or felony.

Sentence Length

Sentences vary dramatically in length from a few hours in jail to life in prison, or even the death penalty. A life sentence can be either with or without the possibility of parole (release from prison). The death penalty has special restrictions and only certain crimes and circumstances qualify. Often, the sentence length determines where the defendant will serve their time.

Jail or Prison

Jail is intended for short-term stays. People sentenced to less than a year's incarceration (often misdemeanors) will generally go to jail. People awaiting trial or who cannot afford bail may also be in jail. Sometimes people who have a felony probation violation serve it in jail rather than prison. Jails are usually run by local governments.

Prisons house inmates with longer sentences—often a year or more (usually felonies)—and are run either by either the state or the federal government. Because prisons are intended for long-term stays, they have more facilities, like libraries and exercise areas, for inmates.

Probation and Parole

Instead of sending a defendant to jail or prison, the judge may place the person on probation. Parole, although often confused with probation, isn't a sentencing provision.

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 a jail or prison sentence and condition the 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.

Parole

People often use the terms probation and parole interchangeably. While they share some similarities, these two types of conditional freedom are very different. Parole is similar to probation in that it grants freedom from incarceration based on a set of conditions and restrictions. If parolees fail to meet these conditions, they can face reincarceration just like a probationer. However, parole occurs after an inmate has served part of their prison sentence. It's a form of early, conditional release from prison rather than an alternative to incarceration. Prison officials, not judges, grant parole based on a range of factors including behavior while incarcerated.

Fines and Restitution

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 of 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

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.

Diversion Programs

Many jurisdictions offer diversion programs, which offer defendants a chance to avoid a criminal conviction. Diversion programs aim to offer low-level offenders, particularly first-timers, a second chance or to address underlying issues of criminal behavior, such as addiction or mental health. The hope is that, with counseling, education, or treatment, the person learns a lesson and steers clear of criminal behavior in the future. If a defendant successfully completes the terms of the diversion program, the court will dismiss the case.

Alternative Sentencing

More and more frequently, judges are looking beyond traditional forms of incarceration and probation for additional sentencing options, particularly in nonviolent cases. Motivated by prison and jail overcrowding, or the idea that traditional sentences do little to deter or rehabilitate, prosecutors, judges, and defense lawyers are working together on other creative options for sentencing, such as:

  • 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
  • treatment courts aimed at helping people with mental health or addiction, and
  • restorative justice (a program where the defendant and victim work together with the help of a mediator to find a satisfactory solution).

Forfeiture

Sometimes after a criminal conviction, the government will seek forfeiture of an asset used in the commission of the crime. For instance, a person convicted of drug sales may lose their house, car, or money made from the crime, or someone convicted of driving under the influence may lose their car. Forfeiture proceedings can be part of the criminal case or a separate action (that may require separate legal counsel).

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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