Learning the Sentence for the Charged Crime

The statute that defines the crime might include the sentence, or you might have to look elsewhere.

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Typically, criminal laws identify the punishment. 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, such as a "Class A misdemeanor," or a felony, such as a Class A felony, without specifying the punishment. In this situation, the sentence can be found in a separate statute that sets forth the punishment either for that particular crime or, in some states, for all misdemeanors or felonies.

Many times, judges can impose "sentences" other than fines and incarceration. Learn about probation, community service, restitution, and other alterante consequences of a conviction here: Alternatives to Jail and Fines.

How Sentences Are Written and Chosen

It's important to read the sentencing statutes correctly. Here are some examples of typical provisions, and what they mean.

Statutory language

What it means

“not more than six months in the county jail”

defendant can be sentenced to no time, or any time up to and including six months

“between five and 15 years in state prison ”

defendant must be sentenced to at least five years, and could be sentenced to as much 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 in state prison or up to two years

Mandatory Sentences

As you can see from the examples above, some sentences specify a minimum sentence, known as a "mandatory minimum." These manda­tory sentences require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws usually reflect what the legislature sees as public sentiment that judges have been too lenient, and a desire to treat all people who break the same law alike.

More commonly, criminal statutes do not carry mandatory sentences, and instead carry a range of possible imprisonment and fines within which the judge can fix the punishment. In these cases, judges can take a number of factors into account when deciding on an appropriate sentence. For instance, judges may 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. In short, mandatory sentence laws fit the punishment to the crime, whereas judges prefer to fit the punishment to the offender.

For information on federal mandatory sentences, see Federal Sentencing Guidelines: Mandatory or Not?

Lighter or 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 the pre-sentence report. (Learn how these reports are assembled and used in Presentence Reports.)

The defense may bring to a judge’s attention an infinite number of factual circumstances that, if presented persuasively and if the judge has discretion and is favorably disposed, may well move the judge to impose a lighter sentence. The following are examples of such factors (called “mitigating” factors):

  • The offender has little or no history of criminal conduct.
  • The offender was an accessory (helped the main offender) to the crime but was not the main actor.
  • The offender committed the crime when under great personal stress, for example, the offender had lost a job, rent was due, 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 lessen 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 the most common aggravating factor. In other cases, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. However, except for prior convictions, judges in jury trials may not base harsher sentences on aggravating factors unless the jury has decided that those factors are accurate (Cunningham v. California, U.S. Sup. Ct. 2007). Sometimes laws themselves specify aggravating factors. Here are some examples:

  • Use of a dangerous weapon when assaulting, intimidating, or interfering with a federal employee carrying out official duties increases the punishment from eight years to 20 years (18 U.S.C. § 111).
  • Committing mail fraud against a financial institution (as opposed to an individual or some other type of institution) can add $1,000,000 and/or ten years to the punishment (18 U.S.C. § 1341).

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 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 judge would likely take aggravating and mitigating factors into account, and these 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

When defendants have prior convictions, particularly prior felony convictions, that alone will often trigger a harsher sentence. The prosecutor must plead the prior--that is, allege the existence of the prior conviction in the indictment or information, and must prove it. Proof often consists of producing a court record of the judgment in the case.

Sometimes, however, defendants are able to challenge the prior, by arguing that it was void (perhaps because a guilty plea was improperly taken), or that in fact it was a misdemeanor conviction. Out-of-state convictions may be particularly ripe for attack -- the defense may be able 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 on additional issues ("elements") that were never proved at trial.

Finally, some defendants may have expunged or sealed their past criminal records. Whether these actions will bar subsequent use of them for sentencing purposes depends on state law. For more information on sealing or expunging criminal and juvenile records, see  Expungement & Sealing Adult Criminal Records.

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