Learning the Sentence for the Charged Crime

Criminal punishment involves lots of considerations.

Criminal punishment is complicated, and sentencing systems vary from state to state. But they do tend to have common traits.

Here you can learn about some of the sentencing basics.  


Again, sentencing law is complex. For example, a statute might list a “minimum” jail sentence that’s longer than the actual amount of time (if any) a defendant will have to spend behind bars. All kinds of factors can affect actual punishment, including credits for good in-custody behavior and jail-alternative work programs. And punishment can take many forms, including fines, probation, community service, restitution, and other consequences.

If you face criminal charges, consult an experienced criminal defense lawyer. An attorney with command of the rules in your jurisdiction will be able to explain the law as it applies to your situation.

Sentencing Statutes

Criminal laws typically identify the basic punishment a defendant could face. For example, a statute identifying specific behavior as a misdemeanor might go on to state, “For a first-time offense, an offender may be fined not more than $1,000 or incarcerated for not more than six months, or both.” Another statute might describe particular behavior as a misdemeanor or a felony without specifying the punishment. In this situation, the sentence can be found in a separate statute.

Here are some examples of typical provisions in sentencing statutes, including what they mean:

Statutory language

What it means

“not more than six months in the county jail”

Defendant can be sentenced to no jail time, or any jail time up to and including six months.

“between five and 15 years in state prison ”

Defendant must be sentenced to at least five years in prison, and could be sentenced to as many as 15.

“a fine of $1,000 and no more than two years in state prison”

Defendant must pay a $1,000 fine and can be sentenced to no time or up to two years in prison.

Mandatory Sentences

As you can see from the examples above, some statutes specify a minimum sentence, often known as a "mandatory minimum." Mandatory sentencing laws usually reflect what the legislature sees as public sentiment that judges have been too lenient. (See Federal Sentencing Guidelines: Mandatory or Not?  for related reading.)

Criminal statutes usually carry a range of possible imprisonment and fines within which the judge can set the punishment. Judges can take a number of factors into account when deciding on an appropriate sentence. For instance, judges may usually consider:

  • the defendant’s past criminal record, age, and sophistication
  • the circumstances under which the crime was committed, and
  • whether the defendant expresses genuine remorse.

Lighter and Harsher Sentences: Mitigating and Aggravating Circumstances

When judges have discretion to impose a range of fines or jail time, they will take many factors into account before reaching a decision. (Often those factors are included in what's called a presentence report.)

The defense may bring to a judge’s attention an almost infinite number of circumstances to try to move the judge to impose a lighter sentence. The following are examples of potentially “mitigating” factors:

  • The offender has little or no history of criminal conduct.
  • The offender was an accessory to the crime, not the main actor.
  • The offender committed the crime when under great personal stress—for example, the offender had lost a job, was late on rent, and had just been in a car wreck.
  • No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

But just as mitigating circumstances can sway a judge to go light on a sentence, “aggravating” circumstances can persuade a judge to throw the book at an offender. A previous record of the same type of offense is a common aggravating factor. Aggravating circumstances also grow out of the way a crime was committed, as when an offender is particularly cruel to a victim.

Sometimes laws specify particular circumstances that might be described as aggravating factors. Here are a couple examples as they relate to time behind bars:

  • Using a deadly or dangerous weapon when committing an assault on an officer or employee of the United States who is on the job increases the maximum potential sentence from one or eight years to 20 years. (18 U.S.C. §  111 (2016).)
  • Mail fraud carries a maximum sentence of 20 years, but if it relates to major-disaster or emergency benefits or affects a financial institution, the maximum is 30 years. (18 U.S.C. §  1341 (2016).)

Example: Tommy Rotten robbed several teachers from the Kind ‘R Garden Nursery School by pointing a loaded gun at the children and demanding that the teachers hand over their purses. Bob Bracci, brandishing a silver nail file, robbed a convenience store clerk at 4 a.m.; no customers were present. Rotten and Bracci, neither of whom has a criminal record, probably will not receive the same sentences even if they are in the same jurisdiction, took the same amount of money, and were convicted of the same crime (robbery). The aggravating and mitigating factors differ greatly in the two cases. Rotten used a clearly dangerous weapon (a loaded gun), and by doing so put many people, including children, at risk. Bracci used a makeshift weapon that is not inherently dangerous. He robbed the store in the middle of the night when few customers, and certainly not children, would likely be present. Because of these factors, Rotten would almost certainly get a much harsher sentence than Bracci.

Prior Convictions

Prior convictions, particularly prior felony convictions, trigger harsher sentences. The prosecutor must normally plead the prior—that is, allege the existence of the prior conviction in the indictment or information—and  prove it. Proof often consists of producing a court record of the judgment in the case.

(Three strikes laws can drastically increase sentences where priors are involved.)

Sometimes, however, defendants are able to challenge the prior, by arguing that it was void (perhaps because a guilty plea was improperly taken). Or they might argue that what's been called a felony conviction was really a misdemeanor. (Out-of-state convictions may be open to attack—the defense might try to show that, had the same crime occurred in the current state, it would not have been a felony, or that the current state defines the crime differently and would have required additional proof of "elements" that were never established.)

Finally, some defendants may have expunged or sealed their past criminal records. Whether these actions will bar subsequent use of records for sentencing purposes depends, like all sentencing issues, on the relevant law. (For more information on sealing or expunging, see these pages on adult and juvenile records.)

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