Criminal Sentencing FAQ

Who determines what punishment a convicted defendant receives?

Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence.

In a very few situations, juries do take part in sentencing decisions—for example, in capital punishment cases juries are typically left with the decision as to whether death is appropriate.

When a statute sets out factual circumstances that can produce a harsher sentence (for example, the use of a weapon in the commission of a crime), a judge cannot impose the harsher punishment unless the jury concludes beyond a reasonable doubt that the circumstances were present.

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