How Does Criminal Sentencing Work?

Judges determine the punishment for a crime based on the law and the circumstances of the case.

After a defendant pleads guilty or loses at trial, the judge will hand down the sentence. Sentencing can be very routine or quite complicated depending on the circumstances of the case and the defendant's criminal history.

Who Sentences the Defendant?

Judges sentence defendants, not juries. The jury decides whether a defendant is guilty or not guilty, but that's generally where its role stops—the jury does not decide the punishment. So how do judges decide a defendant's sentence?

Criminal Statutes and Sentencing

Lawmakers (legislators) define criminal offenses and their punishments in state and federal statutes. The criminal statute sets a maximum punishment for the offense and sometimes a minimum. For instance, misdemeanor theft might carry a maximum punishment of six months in jail and a $1,000 fine, and felony second-degree murder might impose a minimum prison sentence of 10 years and a maximum of 40 years. Depending on how the law is written, judges might have a lot of or very little leeway in sentencing.

Sentencing Limits

Within the limits of the law, 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. In the misdemeanor example above, the judge could not order a 12-month jail sentence when the maximum allowed is six months. But the judge may order the defendant to serve a shorter sentence, such as 30 days in jail.

Mandatory Minimums and Sentencing Guidelines

Sometimes criminal statutes set out mandatory minimum sentences (like the second-degree murder example above), meaning the judge cannot give a lighter sentence than the statute requires.

In some states and for federal crimes, sentencing guidelines indicate a presumptive (or recommended) sentence for a judge to assign based on the details of the crime and the defendant's past crimes. In these situations, judges are typically bound by these guidelines and have less discretion in sentencing.

When Does Sentencing Occur?

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 Happens at a Sentencing Hearing?

At a sentencing hearing, the judge will likely hear recommendations and statements from numerous criminal justice players, including prosecutors, defense attorneys, the defendant, victims, and the probation department. The sentencing judge can consider things that were irrelevant at trial, such as the defendant's motive for committing the crime and personal background (more on these factors below).

The probation department will often issue what's called a presentence report or investigation with its recommendations for the judge. A presentence report often details a defendant's criminal history, issues with substance abuse or behavioral health, and personal history. It will also cover the circumstances of the crime and may include a statement from the victim about the impact of the crime. Victims can also choose to read or provide their impact statements directly to the judge. The prosecutor and defense attorney may argue for or against the recommendations and factual findings in the presentence report at the hearing.

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. 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. 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.

What Is a Sentencing Enhancement?

Sometimes criminal statutes include sentencing enhancement factors. A sentencing enhancement increases the maximum sentence allowed under the law. Examples of enhancement factors include crimes involving use of a deadly weapon or a victim under a certain age. Unlike mitigating and aggravating factors weighed by judges, it's the job of the jury to decide if the facts of the case prove the statutory enhancement. If proven, the judge will apply the enhancement when sentencing.

Does Sentencing Always Mean Prison or Jail Time?

A criminal sentence doesn't necessarily mean incarceration. Especially with first offenses or in less serious cases (like misdemeanors or low-level felonies), judges can use sentencing alternatives like electronic monitoring, community service, fines, and restitution, instead of jail or prison. Or a judge can place a defendant on probation and suspend the prison or jail sentence as long as the defendant complies with the terms of probation, such as going to and successfully completing addiction treatment and counseling.

Making Sense Out of Sentencing

Sentencing can be complicated and, sometimes, difficult to unravel. Consider the following two examples.

Ralph. Ralph faces a burglary charge that carries a maximum sentence of five years in prison. He pleads guilty and receives a sentence of one year in jail with probation. The judge considered the fact that it was his first offense and not much property was taken. Under the sentence, Ralph must serve one year in jail and spend four years on probation once released from jail. If he successfully complies with the terms of his probation, Ralph will have completed his sentence. However, if Ralph violates any of the terms of his probation, the judge can send him to prison.

Margo. The police arrest Margo for reckless driving after drag racing near a local school. After her arrest, she spends three days in jail before pleading guilty. Given her previous vehicular offenses, including a DUI and many speeding tickets, the judge decides to sentence her to 30 days' jail time with 10 days suspended and credit for three days' time served. Margo will have to serve 17 days in jail following her conviction. Here's why. The judge suspended 10 days of the 30-day sentence, which leaves Margo serving 20 days in jail. Credit for time served means that the initial three days she spent in jail following her arrest are subtracted from the 20-day sentence—so she ends up with a 17-day sentence. The 10-day suspended sentence, however, isn't gone yet. To avoid serving all or a portion of those 10 days in jail, Margo must comply with the judge's terms of the suspension (say doing community service). If she slips up, the judge can send her to jail to serve those days as well.

Talk to a Lawyer

If you have questions on sentencing, a lawyer in your local jurisdiction can best advise you as to possible sentencing outcomes based on the particular charges. A criminal defense attorney can help you navigate the system, review options, and argue for the best result at a sentencing hearing.


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