What Happens at Sentencing?

A judge, not the jury, decides a defendant's sentence. In misdemeanor cases, judges frequently hand down sentences immediately after the defendant pleads guilty or no contest or is found guilty after trial. Where the possibility of significant incarceration exists, however, the judge might not impose a sentence until some days or weeks later in a separately scheduled sentencing hearing.

How Long Does Sentencing Take?

The sentencing portion of a criminal case often takes only moments, especially if the judge is rubber-stamping the sentence agreed to in plea negotiations. For example, the judge might sentence a defendant to "a fine of $250, ten days in jail suspended, and one-year probation," while the echoes of the defendant's guilty plea still reverberate in the courtroom. Even felony cases can wrap up quickly when sentences are negotiated as part of a plea bargain. For example, in a felony drug possession case involving California's three-strikes law, a defendant who pleaded guilty was sentenced to seven years in prison in a hearing that lasted six minutes.

However, sentencing is not always so brief an affair, especially when the judge has the legal authority to order a lengthy period of imprisonment. Typically, the probation department will have prepared a presentence report that outlines the defendant's criminal record, personal history, past and present substance abuse, and other factors. Also, the defense and prosecution will have a chance to argue against or in favor of the probation officer's recommendations and the factual findings on which those recommendations are based.

Input from the Prosecutor, Defense Counsel, and Defendant

When deciding what sentence to impose, judges typically consider oral statements made in open court, as well as the probation officer's written presentence report. The people who most commonly speak at a sentencing hearing are the prosecutors, the defense attorney, the victims, and the defendant. Rule 32 of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed.

As can be expected, the prosecutor's comments will tend to highlight aggravating factors in the crime and past criminal behavior on the part of the defendant. And defense counsel typically responds with arguments outlining mitigating factors that justify a lighter penalty. Also, if defense counsel has not already pointed out factual mistakes in the presentence report, this would be the last appropriate opportunity to do so.

Defendant's Allocution (Statement)

No one, not even defense counsel, may be able to speak as persuasively as the person facing the sentence. Thus, defendants also have a right to speak on their own behalf before the judge imposes the sentence. This is known as the defendant's right of allocution. Defendants will likely want to work with their lawyers to prepare what, if anything, they will say to the judge.

The Victim's Role

It used to be that the victim played a minimal role in a criminal prosecution. The victim's only job, if any, was to testify at trial about the circumstances of the offense. Now victims participate more, from the beginning, when they are involved in prosecutors' pretrial investigations, to later, when they give statements in court to the judge during sentencing hearings.

The victim may tell the judge about the impact the crime has had on the victim's life, the pain the victim has suffered, and any other details to show why the defendant should receive a harsh sentence. The victim typically will also meet with the probation officer, who will include a victim impact statement in the presentence report. This statement may include the victim's version of the offense and detail any physical, psychological, or monetary damage the victim suffered as a result of the crime.

Rules in some jurisdictions provide victims with a right to address judges at sentencing proceedings. In these jurisdictions, judges cannot forbid victims from making statements before a sentence is pronounced (Kenna v. U.S. Dist. Ct. C.D. Cal., 435 F.3d 1011 (9th Cir. 2006).)

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.