Criminal Sentencing FAQ

Sentencing might seem straightforward, but often, that's not the case. Criminal laws (or penal codes) generally specify a maximum sentence for a crime. But that maximum sentence is rarely the sentence imposed. Many factors come into play when determining the appropriate punishment for a particular crime. Figuring out the possible sentence for a crime can be complicated. Below you'll find answers to common sentencing questions, but your best source of information is a criminal defense attorney.

Where can the prescribed punishment for crimes be found?

Sometimes the law a defendant is charged with violating identifies 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 imprisoned for not more than six months, or both."

Other laws that define crimes might describe particular behavior as a misdemeanor or felony without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor (or felony), or in some states, for all misdemeanors.

However, punishment often varies according to a defendant's background and the factual circumstances of a particular case. As a result, the actual sentence that a defendant receives if convicted may be less than the maximum term that a statute provides for. If you want to find out what your punishment is likely to be if you're convicted, you might take the following steps:

• Pay a private defense attorney for an hour of consultation. An experienced defense attorney can often make accurate predictions as to likely punishment.
• Talk to an attorney from the public defender's office.
• Ask a relative or close friend who is a criminal defense attorney for informal, unpaid advice.

Do people convicted of the same or similar crimes receive similar sentences?

Some states have "mandatory" sentences, which limit the judge's discretion in setting punishment. Mandatory sentencing laws are a response by state legislatures to their perception of the public's desire to end judicial leniency and treat similarly all people who break the same law. Federal law used to prescribe mandatory sentences; these are now used more like guidelines.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may typically consider factors that include the following:

• the defendant's past criminal record, age, and sophistication
• the circumstances under which the crime was committed, and
• whether the defendant genuinely feels remorse.

What factors do judges use in determining sentences?

If the judge has the discretion to determine the sentence, the defense will usually argue for a light sentence by highlighting what are called "mitigating factors." Examples of "mitigating" factors include:

• the offender has little or no history of criminal conduct
• the offender was an accessory to the crime (helped the main offender) but was not the main actor
• the offender committed the crime when under great personal stress—for example, after losing a job, being late on rent, and having just been in a car wreck
• the offender was a young adult and pressured by older peers, or
• the offender didn't hurt anyone in the crime, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating" circumstances can compel a judge to "throw the book at" an offender. A previous record of the same type of offense is the most common aggravating factor. Other aggravating circumstances grow out of the way a crime was committed, such as when an offender is particularly cruel to a victim. Sometimes, the law specifies aggravating factors, such as the use of a weapon.

Can my attorney ask for an alternative sentence?

Yes, lesser sentences can include suspended sentences, probation, restitution (victim compensation), and community service. Diversion programs, available to some defendants charged with first-time, nonviolent offenses, also may be available. For details, see Sentencing Alternatives: Prison, Probation, Fines, and Community Service.

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.