This article looks at the differences among these crime classifications, moving from least serious (infractions) to most (felonies).
Infractions (sometimes called violations) are petty offenses that are typically punishable by fines, but not jail time. The law will set a maximum fine and, sometimes, a minimum fine.
Because infractions cannot result in a jail sentence or even probation, defendants charged with infractions don't have a right to a jury trial or an attorney. A defendant facing charges for an infraction can hire an attorney, but the government doesn't have a constitutional duty to appoint one. Often, prosecutors don't appear on behalf of the government in cases involving infractions. Traffic offenses are the most common form of infraction. (Some states consider certain kinds of infractions like traffic tickets to be civil, rather than criminal, offenses.)
Infraction example. Ginger receives a speeding ticket. After Ginger and the officer who issued the ticket testify, the judge concludes that Ginger was speeding. Ginger's punishment is limited to a fine.
Misdemeanors are criminal offenses that carry up to a year in jail in most states. Some states have changed the one-year maximum sentence to 364 days to avoid triggering deportation consequences. Punishment for misdemeanors can also include payment of a fine, probation, community service, and restitution.
Some states subdivide misdemeanors by class or degree or define more serious misdemeanors as "gross misdemeanors" or "aggravated misdemeanors." These classifications determine the severity of punishment.
Defendants charged with misdemeanors are often entitled to a jury trial and legal representation. If the defendant can't afford an attorney, the court must appoint one at government expense.
Misdemeanor example. Dave is convicted of simple assault. The offense carries a maximum fine of $1,000 and a maximum jail time of six months. It's a misdemeanor.
Felonies are the most serious type of criminal offense and carry possible sentences anywhere from a year to life in prison. Some states have capital felonies with the death penalty. The punishment for a felony can also include fines, probation, community service, and restitution. If sent to prison, a defendant might be supervised after release or on parole.
Felonies often involve serious physical harm (or threat of harm) to victims, but they also include offenses like white-collar crimes and fraud schemes. The law might also elevate a misdemeanor offense to a felony for repeat offenders. As with misdemeanors, states may also subdivide felonies by class or degree.
Defendants charged with felonies are entitled to a jury trial and legal representation. If the defendant can't afford an attorney, the court must appoint one at government expense.
Felony example 1. Randy is convicted of felony assault with a deadly weapon even though the bottle that he threw at another patron in a tavern missed its intended target. Even though he failed to injure the intended victim, his behavior was intended to (and did) create a risk of serious physical injury.
Felony example 2. Leora had two prior shoplifting convictions before being arrested for yet another shoplifting offense. State law allows prosecutors to charge shoplifting as a felony if the merchandise was worth a certain amount and the defendant has two or more prior shoplifting convictions. The prosecutor charges Leora with felony shoplifting.
A "wobbler" is an offense that may be prosecuted as a felony or as a misdemeanor. An offense that was prosecuted as a felony may also be downgraded to a misdemeanor at the time of sentencing. This occurs when statutes authorize judges to punish offenders as either misdemeanants or felony offenders.
"Wobbler" example. Randy is convicted of assault with a deadly weapon. State law provides that the offense is punishable by up to one year in jail or up to five years in prison. The judge sentences Randy to four months in jail, three years of probation, and 200 hours of community service. The sentence makes the conviction a misdemeanor.
Depending on the circumstances, you may not need a lawyer for something like a traffic-ticket case. But, for the overwhelming majority of criminal cases, using an attorney is the way to go. Beyond the sentence the judge imposes, a criminal conviction can carry long-lasting consequences. If your lawyer can't avoid a conviction, they might be able to get you a better result than you would have otherwise. An experienced lawyer will protect your rights and fully explain the applicable law, your options, and the potential outcomes.
]]>Prop 47 implemented changes to California's felony sentencing laws. The goal of the law is to focus prison dollars on the most serious and violent offenders and maximize less costly alternatives for low-level, nonviolent crimes.
Prop 47 made three changes to felony sentencing laws.
Read on for a general overview of Prop 47, including a section on changing your record of conviction. The law doesn't benefit those who have prior convictions for serious or violent felonies or sex offenses that require registration. Consider speaking to a criminal defense attorney for more details.
Not everyone who is facing charges covered by Prop 47, or who has convictions for the crimes the proposition addresses, will benefit from the proposition’s reductions. To qualify for new misdemeanor sentencing, resentencing, or reclassification, the person must have a record free from certain sex offense convictions and serious or violent felony convictions.
Prop 47 will not help those who have previous convictions for very serious crimes. These include:
People who are still serving their sentences, and who are at risk of committing one of the offenses listed above, may also be excluded from Prop 47's benefits, even if they have no prior convictions for the crimes listed above.
Proposition 47 targets a limited number of crimes—drug possession for personal use (not sale or manufacture) and specified theft offenses for amounts less than $950.
Three offenses targeting possession of controlled substances for personal use are now misdemeanors:
For example, possession of cocaine, a violation of Health and Safety Code section 11350, used to be a felony charge. Under Prop 47, it's a misdemeanor charge—unless the defendant has a prior conviction for a serious or violent felony or sex offense requiring registration (as explained above). In that case, the charge remains a felony.
(Cal. Health & Safety Code §§ 11350, 11357(a), 11377.)
Prop 47 made significant changes to several code sections related to certain theft crimes. The most important change was to take away the prosecution’s discretion in filing these types of crimes as either a felony or a misdemeanor (this option earned these crimes the name “wobblers”). Now, the prosecutor may charge only a misdemeanor if the amount in question is not more than $950 and the person does not have a disqualifying prior.
These theft crimes are:
Prop 47 also added a new crime of shoplifting, which formerly could be prosecuted as a theft or burglary charge, regardless of the amount of merchandise involved. This new, separate crime is defined as entering a commercial dwelling, such as a convenience store, while the establishment is open and during regular business hours, with the intent to commit a theft, so long as the value of the property is less than $950. (Cal. Penal Code § 459.5.)
This is an important change because the law used to allow this conduct to be charged as commercial burglary, a more serious felony punishable by up to three years in prison; or as a misdemeanor punishable by up to one year in the county jail, within the discretion of the prosecution. Now the act of shoplifting may not be charged as a burglary or any other theft and is punishable only by a maximum county jail term of six months.
People who have been convicted of Prop 47 felonies, no matter how recently or long ago, are entitled to request resentencing or reclassification as misdemeanants, by filing an application or petition with the court where they were convicted. This applies to those long ago released from custody or probation, and those still serving time. (The legislature eliminated the November 4, 2022 deadline.)
Many public defender offices around the state have implemented procedures to help their former clients and answer questions about whether the clients are eligible to return to court for resentencing or redesignation. Several county courts and public defender offices have posted forms on their websites that can be used to assist in the petition or application process.
]]>The monetary and human cost of mass incarceration is high, and Congress passed the First Step Act to address the problem. The Act shortened sentences for certain kinds of federal crimes, like drug offenses. It also directed the federal Bureau of Prisons to improve prison conditions and increase inmates’ participation in rehabilitation programs, and it increased opportunities for early release, including “compassionate release.” The goal was to ensure that sentences aren’t unnecessarily long and that incarcerated people are ready to reenter society when released, so they won’t commit more crimes and return to prison. Importantly, the Act applies only to federal cases and prisons. A person serving a state sentence won’t benefit from the Act, though many states have passed their own sentencing reform laws. (Learn what makes a case a federal or state case.)
The First Step Act made several changes to federal sentencing law, including some significant sentencing reforms discussed below.
A criminal law’s mandatory minimum sentence is the shortest sentence a judge may impose for a conviction for that crime. In some circumstances, such as when defendants have certain types of prior convictions, judges must impose an “enhancement,” which increases the mandatory minimum number of years for the crime. For example, with certain drug offenses before the Act, the mandatory minimum of 10 years was increased to 20 years for having one prior drug felony, and to life in prison for having two or more prior drug felonies. Now, the minimum is 15 years for one prior, and 25 years for two or more priors. Further, before Act, those enhancements applied whenever a defendant had any prior drug felony conviction, but the Act now allows the enhancements only if the prior conviction is a “serious drug felony” as defined under federal law. These are just a few examples of changes the Act made to mandatory minimums in drug cases.
Before the First Step Act, the use of a gun during drug-trafficking offenses or violent offenses (such as robbery) required a 25-year mandatory minimum if the offense was a “second or subsequent” conviction for such conduct. This escalating punishment was supposed to deter people convicted of committing armed offenses from committing armed offenses in the future. But the law was applied (arguably misapplied) to cases that resulted in multiple convictions in the same case: One of the convictions was considered the first conviction, and the others were considered second and subsequent convictions. Further, the enhancement had to be imposed consecutively (one after the other) for every second or subsequent conviction. So, if a person was armed when committing five drug deals or five convenience store robberies, the judge was required to impose a sentence of over 100 years, even if it was the person’s first case.
To eliminate these harsh sentences, the First Step Act limits the 25-year gun enhancement to cases where defendants have a previous, final conviction for committing an armed offense. Although the change applies only to sentences imposed after the Act, some courts will consider a defendant’s unusually long sentence for gun (and drug) offenses committed before the Act when deciding whether to grant compassionate release. (See “Changes to Compassionate Release,” below.)
In some cases, federal judges can impose less than the mandatory minimum and avoid sentences that are inappropriately long. This feature of federal sentencing is commonly known as the “safety valve.” Whether a judge can use the safety valve depends on several factors, including the defendant’s criminal history, which is measured in points. Before the First Step Act, judges could impose less than the mandatory minimum only when the defendant had no more than one criminal history point. The Act now allows judges to use the safety valve when the defendant has four or fewer criminal history points
Long before the First Step Act, the Fair Sentencing Act of 2010 shortened sentences for crack cocaine offenses. At that time, people convicted of dealing crack cocaine (primarily Black people) were subject to the same sentences as people convicted of dealing 100 times more powder cocaine (primarily white people). This meant that Black people went to prison for cocaine offenses far longer and far more often than white people. (To learn more, see Crack vs. Powder Cocaine: One Drug, Two Penalties.) Although the Fair Sentencing Act reduced (but did not entirely eliminate) this unfair disparity, the changes applied only to sentences imposed after 2010. To fix this, the First Step Act now allows defendants sentenced before 2010 to seek reduction of their sentences for crack cocaine offenses. Thus, unlike the other changes in the law discussed above, the lesser punishment for crack cocaine is “retroactive,” meaning it applies to sentences imposed before the change in the law.
In 2022, the United States Supreme Court held that when a defendant is resentenced under the First Step Act, the sentencing court can consider changes in the facts and in the law that have occurred since the original sentence was imposed. For example, assume that a defendant got an enhanced sentence for his crack offense because he had a certain kind of prior conviction, but years later, his prior conviction was vacated. When that defendant seeks resentencing on his crack offense under the First Step Act, the resentencing court can now consider that he no longer has that prior conviction when choosing a sentence. The court can also consider the defendant's good (or bad) behavior in custody when deciding what new sentence to impose. (See Concepcion v. United States, 597 U. S. ____ (2022).)
The First Step Act made many changes to prison rules and conditions, including expansion of the compassionate release program and increases in the “credits” inmates can earn toward their sentences. Each of these changes can affect how soon an inmate will be released.
The First Step Act expands the program of “compassionate release,” which allows courts to grant early release for “extraordinary and compelling reasons,” such as an inmate’s permanent serious illness. In the past, only the Bureau of Prisons could file motions for compassionate release, but the First Step Act now allows inmates to file their own motions. Not surprisingly, many more compassionate release motions have been granted under this new rule than previously. And although some judges disagree, many have ruled that because the First Step Act acknowledged the inappropriately long sentences resulting from drug and gun enhancements before the Act, defendants who received those sentences present an extraordinary and compelling reason for compassionate release. (See United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).)
“Good time” credits are rewards that inmates earn for good behavior while incarcerated. The more credits that inmates earn, the earlier they can be released. The First Step Act increased the number of good time credits an inmate can earn for following prison rules and participating in rehabilitation programs. It also directed the Bureau of Prisons to increase access to those programs. Further, inmates whose credits were calculated before the First Step Act can have them recalculated under the new formula, though it is up to the Bureau of Prisons (not courts) to do the calculation and decide whether an inmate has earned good time credits.
If you are facing criminal charges, it’s important to discuss your case with a lawyer before making any decisions about how to proceed. And if you or someone you know might benefit from the changes to federal sentencing described above, consider consulting with a criminal defense lawyer who practices in the federal courts in your area. Most criminal defense attorneys work in their state courts, but a few also handle federal cases. Some attorneys, especially in metropolitan areas, work in both systems. You’ll need the help of an attorney if you want to retroactively reduce a federal sentence, if you feel that any credits have been calculated incorrectly, or if you think that you are not receiving other intended benefits of the First Step Act.
]]>No, not always. When defining crimes and penalties, state and federal lawmakers typically establish a maximum sentence for the offense, such as up to five years in prison and a $10,000 fine. But this maximum sentence is just that—the maximum allowed. Most offenders don't receive the maximum sentence. It's typically reserved for repeat offenders or egregious offenses.
A judge can usually order any sentence up to the maximum or impose one or more sentencing alternatives. Judges tend to have a fair amount of discretion in fashioning an appropriate sentence for a particular offender. In making this decision, judges can review the facts of the case, the defendant’s past criminal history, and the defendant’s age, family circumstances, and amenability to reform.
Alternative sentencing can refer to just about anything that isn’t an outright sentence of incarceration. Some common sentencing alternatives include probation, community service, and restitution payments (compensation to victims). But the list doesn't stop there. Depending on the jurisdiction, a judge might have other options available, such as diversion, treatment courts, electronic monitoring, ignition interlocks, boot camps, split sentencing, shock probation (not a literal shock), and more.
Traditionally, sentencing alternatives were reserved for minor offenses and first-time offenders. But the thinking on this approach has been changing. While crimes of violence (like murder and sexual assault) might not be eligible in many instances, more sentencing alternatives have become available for repeat offenders and felony offenders.
Some programs specifically target certain offenses or offenders. For instance, drug courts focus on working with offenders whose addiction problem likely drove their criminal behavior. Another approach has been working with young adult offenders (ages 18 to 25) who tend to be highly susceptible to peer pressure and instant gratification. Other examples include addressing mental health issues, driving violations, and teen gun violence.
Below are some of the more common sentencing alternatives to jail and prison time. And while certain sentencing alternatives might avoid incarceration completely, others incorporate a short jail or prison sentence as a way to incentivize compliance or impose a sanction for noncompliance.
Most people have heard of probation. Probation refers to a suspended sentence that remains on hold only as long as the defendant complies with the conditions set by the judge. The suspended jail or prison time hangs over the defendant’s head as an incentive to successfully complete the probation terms.
Conditions of probation often include:
In most jurisdictions, judges can require a defendant to serve a brief stint in jail or prison before allowing the suspension to go into effect. This condition is commonly known as “shock probation.” It gives defendants a taste of incarceration so they will hopefully be deterred from violating probation.
Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include fish and game violations, shoplifting, and traffic violations. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation.
Judges can also order defendants to pay restitution. While fines go to the government, restitution is money paid by the defendant to the victim or to a state restitution fund. Offenders may be required to return or replace stolen or damaged property, compensate victims for physical injuries or for medical and psychological treatment costs, or pay funeral and other costs where a victim dies.
Paying back victims or society for one’s actions can be an effective sentencing alternative and lesson on the actual impact of an offense.
Another sentencing alternative is community service. Judges can sentence defendants to perform unpaid community work to repay a debt to society for having committed the offense. Community service can take many forms, from cleaning up roadside litter to speaking at a school on the dangers of drinking and driving. Judges can use this sentencing alternative to benefit the community and hopefully make an impact on the offender.
Treatment or problem-solving courts involve intensive programming and supervision of a defendant by a team of experts. The team typically consists of a judge, prosecutor, defense attorney, social worker, counselor, and probation officer. They work together to address a defendant’s underlying issues that led to the criminal behavior, which could be addiction, mental health issues, PTSD, or family conflict.
The defendant must commit to frequent court appearances, meetings with probation, and counseling or other rehabilitation programs. Not all places offer treatment courts, but in those that do, research shows they are highly effective at stopping the cycle of recidivism.
Defendants might enroll or enter a treatment court program at various stages of criminal prosecution. In some places, a prosecutor might run the program at an early pretrial stage. Other jurisdictions require a defendant to plead guilty before entering the program, and the judge makes the decision on accepting the defendant into the program. Common types of treatment courts include drug court, DUI court, veterans' courts, and mental health courts.
Some defendants may be eligible to have their cases "diverted" out of the criminal justice system. Similar to treatment courts, a prosecutor's office or the court might operate a diversion program. In pretrial programs run by the prosecutor, a defendant has the opportunity to avoid criminal court and a conviction altogether. Other programs might put a defendant in front of a judge who then defers or refrains from adjudicating the case or entering a conviction—sometimes called deferred adjudication.
In either case, a defendant must complete a program and abide by conditions set by the prosecutor or judge. Upon successfully completing diversion or deferred adjudication, the prosecutor often drops the criminal charges or the judge dismisses the case. Because this option essentially gives the defendant a do-over, it’s often a one-time opportunity.
A lot depends on the jurisdiction, resources, and political buy-in when it comes to offering sentencing alternatives. Here are some other examples.
A judge might:
The short- and long-term consequences of a criminal case can be severe. If you face criminal charges, consult a criminal defense attorney. The law and procedure that applies to your situation will depend on your jurisdiction, and within each jurisdiction, each case is different.
]]>First-offender programs divert certain first-time defendants away from the traditional criminal process and into pretrial (sometimes pre-charge) services that address their specific needs—such as substance addiction, mental health needs, gang involvement, homelessness, or food insecurity—that may have brought about the criminal behavior.
Goal. The goal of these programs is to hold defendants accountable while trying to keep them out of the system at present and in the future.
Who runs the program? Many first-offender programs are run by prosecution offices at the local, state, or federal level. Depending on the needs of the jurisdiction, an office might offer first-offender programs to defendants facing first-time drug possession charges or nonviolent misdemeanor or felony charges. Defendants must voluntarily agree to participate in the program.
What is the outcome? If the defendant successfully completes the program, the prosecutor might dismiss or reduce the charge or decide not to formally file the charges. However, prosecutors leave their charging and prosecution options open for those defendants who violate the rules or don’t complete the program. These defendants usually go back to square one and head to court.
Eligibility for first-offender programs varies from state to state and federal district to federal district. Often, a state or federal law will authorize a diversion program and set high-level eligibility requirements. And then it’s up to the individual prosecutor’s office to decide what type of program to run and what eligibility requirements to impose. (Generally speaking, defendants are not entitled to participate in a diversion program even if it’s offered and they meet the requirements.)
For instance, state law might authorize pretrial diversion programs for defendants charged with a nonviolent felony or misdemeanor, as long as the defendant has no prior convictions for violent crimes, has never been in a diversion program before, and isn’t charged with a crime involving a position of trust (such as embezzlement). Prosecutors’ offices around the state could implement various programs under this authority. Some might focus on young adult offenders (age 18 to 25), while others might apply only the drug or alcohol-related charges or prostitution charges.
Initially, many prosecutors’ offices limited first-offender programs to misdemeanor charges but that has changed over time. First-offender programs across the country range from minor to major charges. For example, several cities offer diversion programs for young people facing felony or misdemeanor firearm possession charges.
Defendants who enter first-offender or diversion programs get a chance to avoid criminal prosecution or a conviction. But this opportunity usually means the defendant will be closely supervised for a year or more and must agree to the prosecution’s terms to get the benefits.
For instance, many programs require the defendant to:
The actual program requirements will depend on the charges and the defendant’s criminal history and personal history. Typically, the defendant will sign a contract with the prosecutor’s office that outlines all the requirements.
Not following the rules can get the defendant kicked out of the program and the prosecutor can proceed with the criminal case as usual. For minor violations, a defendant might get a second chance, although this second chance could come with more onerous conditions.
For those charged with a federal crime, you might want to ask your defense lawyer if the U.S. District Attorney’s office offers a pretrial diversion program. Remember, diversion and first-offender programs vary by district.
People who have been charged with certain federal drug crimes may be eligible for diversion under the Federal First Offender Act (18 U.S.C § 3607). To be eligible, the defendant must not have prior state or federal convictions concerning controlled substances. A person can participate in the federal program only one time.
Defendants who enter the program plead guilty or have been found guilty, but their judgment of conviction isn’t officially "entered" into the record. After a year of probation, if the defendant has completed its terms successfully, the court will dismiss the proceedings without entering the judgment of conviction. But if the defendant violates probation, the case will proceed with the entry of the judgment and sentencing.
For successful probationers, the case "shall not be considered a conviction." Defendants who were younger than 21 at the time of the offense, and who successfully completed probation, will see the record of their case expunged or sealed.
Federal diversion programs are not limited to simple drug possession charges. Examples of other federal diversion programs, often run by Pretrial Services, include programs aimed at:
Some programs don’t have a specific focus but might exclude defendants who are charged with sex offenses, child exploitation or pornography, offenses involving the use of a firearm, or gang-related offense for major players.
Department of Justice (DOJ) guidelines outline certain eligibility criteria for pretrial diversion programs but leave many decisions for local offices to make, including the available outcomes. Upon completion, a prosecutor might offer to dismiss or reduce the charges or not file charges. (18 U.S.C. § 3154.)
Just like the federal programs, state programs vary by city, county, or district and depend on the needs of the community and prosecution priorities. A community suffering from a high rate of opioid and other drug overdoses might focus on first-offender programs for defendants with drug addiction. Another community might be trying to get guns off the streets and out of the hands of teens and young adults and focus on firearm possession charges.
Other program examples include efforts to divert the following people out of the criminal system:
Some prosecution offices offer several first-offender programs. It’s a good idea to talk to your lawyer about what options are available in your area, what the program entails, and what the advantages and disadvantages are.
If you face criminal charges, ask your lawyer if you might be eligible for a first-offender program or some other kind of diversion. Even if you doubt you're eligible, the advice of a lawyer with experience in your area is crucial. Rules and customs vary significantly from state to federal court, state to state, and even county to county.
]]>Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by only a fine include fish and game violations, shoplifting, and traffic violations. For more serious offenses or when the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation.
In many parts of the country, laws specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount. (Also, the Eighth Amendment to the U.S. Constitution bans excessive fines, limiting what the government can seize in forfeiture proceedings.)
Fines and restitution are often confused in the public's mind. They are not the same. The money from fines goes to the state (or federal or local) government prosecuting the crime. Restitution is money the defendant pays to the victim or to a state restitution fund to compensate the victim for the harm done due to the crime.
In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes, in which case defendants may be sentenced to pay the state back the money that was fraudulently taken. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries and medical and psychological treatment costs, or to pay funeral and other costs if the victim dies.
Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to a fine, prison time, community service, probation, and/or some other punishment. Sometimes, plea bargains are struck by which criminal charges are dropped altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement is called a “civil compromise.”
For more about plea bargains and how they work, see Plea Bargains.
In most states, restitution orders are limited to the victim’s out-of-pocket economic losses, such as medical expenses and lost pay for missing work. With few exceptions—such as when a child has been sexually assaulted by the defendant—a judge cannot order a defendant to compensate a victim for noneconomic damages such as pain and suffering and emotional distress. Victims who want compensation for noneconomic losses have to sue the defendant in a separate civil action.
Courts typically enforce their restitution orders in two ways.
Recognizing that many criminal defendants may never be in a position to pay full restitution, a number of states also have set up restitution funds to help compensate victims who cannot collect from the defendant.
]]>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:
HOW MUCH TIME WOULD YOU ACTUALLY SPEND IN JAIL?
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.
Suppose that 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, on the other hand, brandished a silver nail file while robbing a convenience store at 4 a.m., when no customers were present.
Criminal records aside, Rotten and Bracci probably won’t 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 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, in harm’s way. Bracci used a makeshift weapon that’s not inherently dangerous. He robbed the store in the middle of the night, when few customers, and certainly not children, would be present. Because of these factors, Rotten would almost certainly get a much harsher sentence than Bracci.
For a more thorough understanding of sentencing law and aggravating circumstances, consult an experienced criminal defense attorney. And if you're facing criminal charges or are already approaching the sentencing stage, rely on that kind of lawyer for representation. There's no substitute for knowledge and experience, particularly when the stakes are so high.
]]>When a parole board grants a parole request, it also sets the conditions of parole. Those conditions will be in a parole agreement—basically a contract outlining where the parolee will live and work during parole and establishing rules the parolee must follow to remain in the community.
Many parole conditions are standard and apply to all or most parolees. Common parole conditions include:
Others parole conditions are imposed case by case and are specifically tailored to the offender. Examples of these special parole conditions include:
If a parolee violates any conditions, the parole officer will generally report the violation to the parole board or another supervising authority. For minor violations, the parole officer may be authorized to impose certain sanctions and handle the matter. Other violations will typically go before the parole board to decide whether to impose sanctions, modify the conditions, or revoke parole. Revoking parole means the parolee heads back to prison.
Parole and probation are similar but not the same. They occur at different times during the criminal justice process and involve different institutions.
When ordering probation, a judge allows the convicted defendant a chance to serve their sentence in the community, rather than behind bars. Parole, on the other hand, is post-incarceration release and isn’t part of the sentence. A parole board may grant parole after an inmate has already served part of their sentence in prison.
Both probation and parole often come with conditions. And a violation of those conditions can mean time behind bars. For probationers, a judge will decide whether to revoke probation and send the person to prison. In the case of parolees, usually, the parole board makes revocation decisions for violations.
Though there are helpful online resources for state and federal former prisoners, consider seeking the help of an experienced attorney if you want to fully understand or enforce your rights.
]]>Answer: Many prisoners can get time off—that is, a reduction of their sentences—by behaving well. In the federal system, prisoners who, in the judgment of the Bureau of Prisons, have exhibited “exemplary compliance with institutional disciplinary regulations” can get up to 54 days per year off their sentences. Prisoners are eligible if they are serving a prison term of more than one year; those serving life sentences are ineligible. Earning or making progress toward a high-school diploma or the equivalent is a factor that weighs in favor of time off. (18 U.S.C. § 3624(b).)
]]>Courts have the ability to order that a defendant pay restitution—which this article focuses on—in order to compensate a victim for financial losses related to a crime. Independently, states have crime victim compensation statutes designed to help certain victims (and sometimes their families) recoup losses when they haven’t been sufficiently repaid. Government-run compensation programs can come into play, for example, when there hasn’t been a conviction or the defendant doesn’t have enough money to pay restitution. To learn more about crime victim compensation, visit the National Association of Crime Victim Compensation Boards.
Restitution involves the court, as part of a sentence in a criminal case, ordering a defendant to compensate the victim for losses suffered as a result of the crime. All states have laws providing that convicted defendants pay restitution to their victims. Public policy favors imposing restitution as part of a sentence to force the offender to answer directly for the consequences of the crime.
Courts are required to consider restitution as part of any sentence, including plea bargains, even when the victim doesn’t request it. When a judge doesn’t order restitution or orders only partial restitution, many states require that judge to provide a justification on the record.
Restitution is included as part of a sentence in a criminal case when:
Restitution is almost always part of the sentence in theft or fraud cases; the court directs the defendant to pay back the amount stolen.
In addition, many states require mandatory restitution for certain offenses, such as crimes against the elderly, domestic violence, sexual assault, hate crimes, child abuse, child sexual abuse, drunk driving, and identity fraud.
The laws that authorize the payment of restitution to crime victims also define who exactly that victim is.
Direct victims. Generally, restitution is paid to the person who directly suffers injury or loss as a result of the defendant’s crime, such as the assault or robbery victim. In most states, especially in relation to financial crimes, the victim can be an individual, partnership, corporation, or any other association or entity.
Indirect victims. In some cases, the law allows compensation to indirect victims. For instance, in a murder case, the surviving family members of the murder victim are eligible to receive restitution.
Third parties. Many states authorize restitution to any entity that has provided recovery to the victim as a collateral source, such as victim compensation programs, government entities, and victim service agencies. If a victim is insured and has been reimbursed by the insurance company for damages from the criminal act, some states allow the court to order a defendant to pay restitution directly to the insurance company. A few states even allow restitution to creditors.
The government. When there's no identifiable victim of a crime, the defendant cannot be ordered to pay restitution as part of his or her sentence. For example, a defendant convicted of possessing a fraudulent identification in the name of Ned Nobody can’t be ordered to pay restitution to Mr. Nobody if Mr. Nobody doesn’t exist. However, in some jurisdictions, the government and society at large would be considered the victim of these “victimless" crimes (especially drug offenses, prostitution, and welfare fraud), and defendants could be ordered to pay restitution to reimburse agencies for money expended to investigate the crime.
Restitution can be ordered to reimburse a victim for a variety of expenses related to a crime. While provisions vary from state to state, the following can typically be considered in calculating restitution amounts:
Funeral expenses. All expenses associated with the funeral and estate closing costs are usually considered appropriate for restitution in homicide cases.
Lost wages. If a victim missed work because of injuries from a criminal act or because of participation in the court process, the victim can ask to be compensated for these lost wages. In some states, defendants can even be required to compensate victims for any vacation time or sick time used for recovery or court attendance. Victims who are self-employed stand to lose far more from not being able to work, so they can ask for restitution for lost profits.
Medical and counseling expenses. Medical expenses such as hospital costs, physical therapy, and rehabilitation care are generally included. Most states allow restitution to cover counseling expenses for victims, which can sometimes include counseling of victims’ family members in homicide cases. Some states allow the court to order restitution amounts in anticipation of long-term expenses that may not have fully materialized by the sentencing date.
Lost or damaged property. Courts can order restitution for the replacement or repair value of stolen property that cannot be returned and for the cost of any property damage. In the event that specialized cleanup is required (such as removal of biohazard waste from a homicide scene or meth house), these expenses can be included in restitution amounts.
Other direct out-of-pocket expenses. The court can order restitution for any other out-of-pocket expenses incurred directly because of the crime, such as increased insurance premiums in a burglary case or expenses for correcting a victim’s credit history in an identity theft case.
Courts must take certain legal elements into consideration in determining the amount of restitution ordered in a particular case. These include:
Although some states require judges to order defendants to pay restitution regardless of their ability to pay, as a general rule, ability to pay is an element to be considered in determining the amount of restitution and the schedule of payments.
The court can always consider a defendant's future financial prospects in assessing restitution requirements. For example, if Tom Trustfund is currently penniless but set to come into a large windfall on his 30th birthday, a judge would likely order a schedule of increasing payments in restitution amounts in a sentence for financial fraud. Similarly, the court would likely order minimal restitution from Penny Pauper, who has no resources, no education, and no future prospects.
The court can also consider any civil settlements in deciding whether to make a defendant pay restitution and what amount of restitution to order. In that situation, the court is likely to order less, if any, restitution to prevent the victim from receiving a windfall. However, as restitution is part and parcel of the criminal justice system, a civil settlement agreement typically cannot prevent the court from ordering restitution in a criminal case.
]]>In a nutshell, the cruel and unusual punishment clause measures a particular punishment against society’s prohibition against inhumane treatment. It prevents the government from imposing a penalty that is either barbaric or far too severe for the crime committed.
This article will look at how courts evaluate whether a punishment is cruel and unusual and how this standard has evolved.
The practical meaning of “cruel and unusual” has troubled courts for generations, because it is difficult to imagine that any punishment, no matter how barbarous, should be accepted simply because it is “usual.” As long ago as 1910, the Supreme Court acknowledged that “what constitutes a cruel and unusual punishment has not been exactly decided.” (Weems v. U.S., 217 U.S. 349.)
Hoping to give the cruel and unusual punishment clause a more workable application, the Supreme Court began to follow the “evolving standards of decency” test. In 1958, Chief Justice Earl Warren wrote that the clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, 356 U.S. 86, 100-101 (1958).) The Court continues to follow the evolving standards approach today.
The evolving standards approach looks not only at the nature of the punishment in each case but also at whether it fits the severity of the crime. Courts look to the sentences for other criminals in the state where the crime occurred, and the sentences for the same crime in other states. When more serious offenses result in less punishment than the punishment being examined, or when other states punish the identical crime less severely, a court is likely to conclude that the punishment does not fit the crime and strike the sentence.
However, a punishment isn't unconstitutional simply because it is severe. The Eighth Amendment forbids only grossly excessive penalties. No particular term of years in prison is forbidden, nor is the death penalty inherently cruel or unusual. And what one court might find to be cruel and unusual, another court could find a similar sentence constitutional.
For example, the Alaska Supreme Court struck down a defendant's 36-year sentence imposed for passing a series of bad checks totaling $1,384.35 and directed the trial court to resentence the defendant. (Faulkner v. State, 445 P.2d 815 (1968).) But one might be surprised to learn that the U.S. Supreme Court once held that a 25-year-to-life sentence for stealing three golf clubs under a state's “three strikes” law wasn't unconstitutional. (Ewing v. California, 538 U.S. 11 (2003).)
The cruel and unusual punishment clause also applies to conditions of incarceration. Prison officials may not deprive inmates of “the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention.” (Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977).) Nor may they “maliciously and sadistically” use force to harm inmates. (Hudson v. McMillian, 503 U.S. 1 (1992).)
Whether applied to prison conditions or criminal sentencing, the meaning of “cruel and unusual” isn’t much clearer today than it was in 1790. However, the Supreme Court has at least determined that we must evaluate the appropriateness of particular punishments in light of developing social standards.
Here are some punishments that courts have found cruel and unusual:
Punishments that have been found to be constitutional include:
Talk to a criminal defense attorney if you have questions regarding the constitutionality of a particular sentence, condition of the sentence, or incarceration conditions.
Read on to learn more about the origin and early applications of the ban, which dates back to 1689.
]]>If a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous.
Concurrent sentences. When sentences run concurrently, defendants serve all the sentences at the same time.
Consecutive sentences. When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense.
The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences. Some criminal statutes, however, require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.
(To learn about what judges consider when imposing sentences, read more on aggravating factors and mitigating factors.)
Haydn Goseek was convicted of 20 counts of forgery for forging and cashing 20 separate checks. Each count carries a maximum possible prison term of five years. If the judge gives Haydn a maximum sentence on each count and runs the sentences consecutively, the total sentence would be 100 years in prison. If the judge runs the sentences concurrently, Haydn’s total sentence would be five years in prison because he would serve all of the sentences at the same time. If Haydn previously had a clean record and forged the checks when he had been temporarily laid off from work, the judge might well sentence him to less than the statutory maximum of five years on each count and run the sentences concurrently.
Same case. Haydn’s forgery conviction was in Michigan. At the time of the Michigan conviction, Haydn was already serving a sentence in Indiana for forgeries committed there. (Indiana turned Haydn over to Michigan temporarily to stand trial.) When the Michigan judge sentences Haydn on the Michigan forgeries, Haydn’s attorney can ask the Michigan court to allow Haydn to serve the Michigan sentence concurrently with the Indiana sentence. If the judge agrees, every day that Haydn serves in Indiana will count as though it were served in Michigan.
Sometimes, a sentencing judge can legally give just a single sentence to a defendant who is convicted of separate crimes. This comes up when state law prohibits "double punishment" for convictions that result from a single unlawful act.
Here's how California's law reads:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Cal. Penal Code § 654(a).)
As an example, assume a defendant sets a house on fire in an attempt to kill the occupants. The defendant may be convicted both of arson and attempted murder but could probably be given only a single sentence. Typically, the sentence would be for the more serious crime, which in this instance would probably be attempted murder.
Sentencing might seem straightforward, but it tends to be more complicated than one might assume. If you have sentencing questions, consider speaking to a criminal defense attorney.
]]>With the abolishment of federal parole, it was expected the USPC’s responsibilities would diminish as the number of federal parolees decreased. But over the years, several laws placed new prisoners under its jurisdiction.
This article will provide a brief overview of federal parole and the USPC’s continuing role.
Congress eliminated parole, in part, due to concerns of unpredictable outcomes in sentencing. A prisoner given a 20-year sentence could sometimes be released on parole after only a few short years. Even though the parole board had to consider each prisoner's likelihood of committing another crime, Congress was concerned about the release of potentially dangerous convicts who hadn't spent enough time behind bars.
A new system of sentencing guidelines and supervised release took its place to offer a more predictable and equitable sentencing system.
The number of federal parolees continues to decrease. But several laws put the USPC in charge of release decisions for other offenders. The USPC has jurisdiction over the parole or release of the following groups of prisoners.
The first group consists of prisoners mentioned above—those who committed crimes before November 1, 1987. The elimination of parole did not apply to these prisoners because they were legally eligible for parole hearings at the time of their convictions. This cohort is a relatively small (and decreasing) population of fewer than 2,000 prisoners, but their cases still come up for parole board hearings and require parole supervision when released.
Since 1997, the federal parole board has also supervised the parole and supervised release of those convicted of felonies and serving sentences in the District of Columbia (D.C.). (Offenders who are released to nearby states are supervised by state parole officers in those jurisdictions). Parole violation hearings are handled by the federal parole authority or the state equivalent if a state is supervising the prisoner.
Lastly, the federal parole board has jurisdiction over:
For the offenders under its jurisdiction, the USPC continues to:
The USPC also contracts with other agencies to perform services. For instance, the U.S. Office of Probation and Pretrial Services notes that its officers supervise certain individuals released by the USPC.
If you have questions regarding federal supervised release or parole, speak with a criminal defense attorney whose defense work includes federal crimes. For more information on the history of federal parole and the jurisdiction of the USPC, check out the USPC's website and this report written by the Government Accountability Office.
]]>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.
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.
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.
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).)
With sentences increasingly reflecting the impact of crimes on victims’ lives, a crime victim might seek assistance from a friend or counselor when writing an impact statement. Statements may touch on the physical, emotional, and financial effects of crimes. For example, how did a crime change the victim’s daily life or general lifestyle? How did the crime affect relationships with family members and friends? What medical or psychological treatment has a crime necessitated?
Victims might also be eligible for restitution (from the perpetrator) or crime victim assistance funds (from the county or state). For further information, ask a court clerk or go online to the Office for Victims of Crime. Nolo also provides links to articles and additional Resources for Victims of Crime.
After the judge reviews the presentence report and hears from attorneys, the defendant, and the victim(s), the judge imposes a sentence within the limits set by law. Crimes and their penalties are defined in state statutes (sometimes called the penal code or criminal code). Typically, the statute will set a maximum penalty for a crime, such as "incarceration up to 20 years, a fine up to $10,000, or both." If a defendant has no criminal record and mitigating circumstances justify a lenient sentence, the judge might impose a prison sentence of five years and a $5,000 fine. On the other hand, if the defendant has a long history of violent crimes and shows no remorse, the judge could impose the maximum 20-year sentence.
If you have questions about the sentencing process, talk to a local attorney experienced in criminal law.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>I live in an area with a lot crime. Some of my friends say they have to be really careful—or they have to go to drug treatment or do community service—because they're on "probation" or "parole." Can you tell me what these words mean, and whether there's a difference between probation and parole?
I see why you're confused. Not only do probation and parole both start with the letter "p," but they both represent ways for people convicted of crimes to live out in society while under some form of supervision. What's more, they're both conditioned on good behavior—if the offender messes up, they're shown back to their cell.
But there is a major procedural difference between probation and parole. Probation is part and parcel of the offender's initial sentence, whereas parole comes much later, allowing the offender early release from a prison sentence.
Probation is handed down by the judge at the time of sentencing. It doesn't have to come with jail time but can. The judge will specify restrictions on the offender's activities during the probationary period.
Parole is granted by a parole board, after the offender has served some—or perhaps a lot of—time. The parole board may consider factors such as the offender's behavior in prison and level of rehabilitation and let him or her out early. The parole board can also specify restrictions on the person's activities while on parole.
by: Sara J. Berman
In some jurisdictions, a “life” sentence is a misnomer in that it can come with the possibility of parole. Depending on the state’s law, a defendant may be eligible for parole after a set number of years, like 20, 25, or 40. A defendant who has served the minimum sentence can apply to a parole board for release. (A judge typically hands out the initial sentence but takes no part in the release decision.)
A defendant who receives life without parole cannot apply for release. The sentence commits the defendant to a life behind bars (except in rare instances, as where the person receives some kind of clemency).
As you can see, certain life sentences don’t always result in actual life imprisonment. But even where the sentence is life without the possibility of parole, consecutive (back-to-back) life sentences may serve a practical purpose. Most often, multiple life sentences arise in murder cases involving multiple victims.
To take a situation involving the possibility of parole, suppose that a defendant is on trial for two murders. The jury convicts him of both, and the judge sentences him to consecutive life sentences with the possibility of parole. State law allows the defendant to apply for parole after 20 years. By sentencing the defendant to consecutive life sentences, the judge has likely ensured that he will be behind bars for at least 40 years.
Now let’s say the defendant received consecutive life sentences without the possibility of parole. Here, the defendant appeals the convictions and a court overturns one because the prosecution didn’t comply with its discovery obligations. That takes one life sentence off the books—at least until the defendant can be retried. But the other life sentence remains in effect.
]]>Whereas parole boards grant early release in the state system, federal courts impose supervised released during sentencing; supervised release is the part of the defendant’s sentence that follows time behind bars. The court isn’t required to order supervised release in most cases, but the federal sentencing guidelines recommend a term of supervised release in most felony cases (cases involving prison terms longer than one year).
Federal courts have to order a period of supervised release in cases involving first-time domestic violence offenders, certain drug and sex offenses, and kidnapped children.
Generally, federal judges are allowed to use their discretion in deciding the length of supervised release—as long as they don’t exceed the maximum the law allows.
Maximum terms. For the most serious felonies (class A and B felonies, such as murder), the maximum term is five years. Less serious felonies (class C and D felonies–bank robbery, for example) carry a three-year maximum. And in cases involving misdemeanors and the least serious felonies (class E felonies, such as filing a fraudulent income tax return or failing to pay child support), supervised release can’t exceed one year.
Minimum terms. Some crimes force courts to impose a minimum period of supervised release—these include serious offenses like kidnapping a child and various drug- and sex-related offenses.
Before deciding whether to impose a term of supervised release and how long to make it, federal judges must considered certain factors. These include:
Where a judge sentences a defendant for multiple crimes and orders more than one term of supervised released, the terms will run concurrently rather than consecutively.
Example: Ralph, a Canadian citizen, is in the U.S. illegally. After a DUI conviction, the government deports him back to Canada. Several months later, Ralph slips back across the border and takes up residence in New York City. He goes back to his old habits and is once again arrested for drunk driving. This time, police also find a stolen firearm in his car. In federal court, Ralph is convicted of illegal reentry into the U.S. (a class E felony) and possession of a stolen firearm (a class C felony). In addition to a prison sentence, the judge imposes supervised release terms of one year for the illegal reentry conviction and three years for the stolen-firearm conviction. Because the supervised release terms run concurrently, when Ralph gets out of prison he will have to serve three years of supervised release.
A federal court can often sentence a defendant to probation—but not always. The judge typically can’t opt for probation where:
Federal judges who don’t order prison time must sentence first-time domestic violence offenders to probation.
The length of a probation term depends primarily on the seriousness of the offense. For felonies, the length of probation must be at least one year and not longer than five years. Misdemeanor probation also has a five-year maximum, but no minimum. Probation terms for infractions can’t exceed one year.
In deciding whether to order probation and the length of any probation term, federal judges must consider—in addition to the factors involved in supervised release decisions—the need for the sentence to:
Federal judges need also take into account the kinds of sentences available for the offense.
The potential conditions of supervised release and of probation are essentially the same. Federal judges must order certain conditions for all defendants, whether supervised release or probation is involved. These typically include the defendant’s:
Courts must order first-time domestic violence offenders to participate in domestic violence rehabilitation programs. They must order sex offenders to comply with sex offender registration requirements.
Federal courts have broad discretion to order additional conditions that are reasonably related to:
But conditions can’t restrict a defendant’s liberty any more than is reasonably necessary, and they must be consistent with the U.S. Sentencing Commission's policy statements.
The federal sentencing guidelines recommend that judges order, in addition to the required conditions, certain “standard” ones. These include:
Other standard conditions prohibit the defendant from drinking too much, hanging out in areas where drugs are used and sold, and associating with criminals.
The federal sentencing guidelines also recommend “special” conditions for specific offenses. For instance, suppose the defendant is or had previously been convicted of a felony or an offense involving a dangerous weapon. In that situation, the guidelines recommend that the judge prohibit the defendant from possessing a firearm or dangerous weapon. (For a related issue, see Can someone possess a gun after a criminal conviction?) Somewhat similarly, the guidelines recommend that judges require defendants who have committed financial crimes to provide their probation officers with access to their financial records.
There are also special conditions that might require a defendant to:
If you face criminal charges—whether in the state or federal system—make sure to consult a qualified attorney who practices in that system. Such a lawyer can more fully advise you of the law and explain how it applies to your situation.
]]>A “wobbler” isn’t a misdemeanor, nor is it a felony. It’s both. It’s a crime that prosecutors can charge as and judges can sentence as either a misdemeanor or felony.
Consider, for example, California’s statute regarding assault with a deadly weapon. That statute provides that an assault with such a weapon (other than a gun) can be punished by either prison time of two, three, or four years, or up to 364 days in jail. (Cal. Penal Code § 245(a)(1) (2019), Cal. Penal Code § 18.5(a) (2019).) Prison time denotes a felony, while jail time indicates a misdemeanor. If the judge sentences the defendant to prison time, a felony conviction results. If the judge chooses jail time or a lesser punishment, it’s a misdemeanor conviction. (Some states even allow judges to wait to decide whether certain crimes are misdemeanors or felonies until the defendant has completed probation.)
Prosecutors have the choice of whether to charge a wobbler as a felony or a misdemeanor. But even when prosecutors choose one over the other, judges typically have the final say. For example, if prosecutors charge a wobbler as a felony, the judge can reduce it to a misdemeanor at sentencing.
The facts of the crime and the circumstances surrounding the offender often dictate whether prosecutors and judges go with the misdemeanor or felony label. Stabbing someone with a knife, for example, is a kind of deadly-weapon assault likely to incur a felony charge or conviction. On the other hand, swinging a wine bottle in the general direction of someone might result in a misdemeanor, particularly if the judge determines that prison time wouldn’t have a rehabilitative effect.
(Learn more about probation—including its conditions—in our Probation section.)
If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited the defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.
The revocation hearing isn't the same as a trial. The burden of proof for the prosecution is typically not "beyond a reasonable doubt." Rather, it's something less, such as having to prove that, "more likely than not," the violation took place. Because the burden of proof is less than at a trial, a probationer might face what could seem to be inconsistent results: If the probation violation is the commission of a new crime and the probationer is acquitted of that crime, he can nevertheless have his probation revoked. In essence, probation is a privilege that can be lost more easily than one’s initial freedom.
A probation revocation hearing happens in court, without a jury. Both the defense and prosecution may present evidence to show the judge why the defendant should or should not be subjected to whatever penalty the judge originally ordered, but suspended. The defendant is allowed counsel at this hearing, but the judge does not have to follow strict rules of evidence.
When a defendant arrested on new charges is found to be in violation of an earlier probation order, the defense may negotiate a new plea bargain to cover both cases in one package deal. This is especially common in busy courts where calendars are backlogged.
Check out our section on Plea Bargaining to learn how (and why) deals are made.
The law on probation may differ from one state to another. Practices may even vary somewhat from one part of a state to another. And federal court has its own set of rules. If you’re facing probation revocation, be sure to consult an attorney experienced with the relevant law. You can begin your search with Nolo's Lawyer Directory.
]]>Furthermore, studies show that diversionary programs are much less costly than sending a case through the normal court process. In addition, diversion still gives defendants the opportunity to compensate victims, by means of restitution orders and community service.
Diversion is a program that has been created by the state legislature and signed into law. It identifies crimes and offender characteristics that will enable the defendant to enter the program. Under some diversion systems, defendants are “diverted” to counseling early in the proceedings. In some formats, the defendant doesn’t have to enter a guilty or no-contest plea in order to receive diversion. Other systems require that the defendant formally admit guilt, but suspend punishment until the defendant has had the opportunity to complete diversion. (The plea isn’t formally entered into the court system so it can be erased upon successful completion of the program.)
Defendants typically pay for their diversion programs with a fee to the court, treatment center, or both. The cost can sometimes be more than a fine.
Diversion programs can last from six months to a year or more. These programs emphasize counseling, treatment, and behavior modification over punitive measures. Often, participants must agree to attend classes and vocational training, participate in individual or group therapy or counseling, perform community service work, make restitution to any victim, and pay fines.
When participants successfully complete the program, the case returns once and for all to court and is dismissed. If the case is dismissed, the record of the arrest isn’t usually sealed or otherwise destroyed. Defendants may be able take the additional step of seeking to expunge, or seal, the record of the case. (For more information, see Expungement or Sealing of Adult Criminal Records.)
If the defendant doesn’t complete diversion or is discharged from the program for failure to adhere to its terms (or for subsequent criminal behavior), the case returns to court. If the defendant previously entered a guilty or no-contest plea, then the judge can impose a sentence. If the defendant failed and the form of diversion didn’t require her to previously enter such a plea, then she’ll have to enter one, and the case will proceed accordingly.
When creating a diversionary program, legislators identify the types of offenses that make offenders eligible for it. These offenses are typically minor and non-violent, such as petty theft, personal possession of certain drugs (not possession for sale), and in some states, driving while under the influence of alcohol or drugs. Some states include assaults that involved very minor or no injuries, and some include domestic violence and child abuse or neglect.
Most programs limit participation to those who have no prior convictions for the charge they now face. Common requirements for drug diversion in particular includes:
If you’ve been arrested or otherwise face criminal charges, consult an experienced criminal defense lawyer. A lawyer versed in local practice will be able to fully explain the applicable law, including the ins and outs of the relevant diversion system.
]]>I've been offered "time served," which means I can go home right away. Any reason not to agree?
Time that defendants spend in jail before they are convicted (called pretrial detention) may be credited toward the total length of the sentence. This is called time served. A defendant unable to make bail may spend time in jail before a plea bargain or a trial takes place—sometimes days, sometimes months, and in very rare instances, years. It is not unusual in minor first-time offenses for a plea bargain to be struck whereby the defendant’s total punishment is time served plus probation.
While time served sounds terrific and most offenders jump at the chance to be let out of jail right away, this option is by no means a “get out of jail free” card. There are serious consequences that a defendant should not take lightly:
Criminal record. The offender will still have a criminal record; time served doesn’t erase the conviction.
Can you handle probation? Time served is almost always given in conjunction with probation and sometimes a fine, community service, or both. Probation may have onerous conditions attached to it. Defendants who violate even one of the probation conditions may be returned immediately to jail. Because of this, some defendants (especially those who have been around the block and know that they're not going to reform immediately) may wisely choose to avoid the fine or probation conditions and serve the entire jail time outright, especially if the charge is relatively minor and the local jail is routinely releasing defendants early.
In California, for example, the three strikes laws list the offenses that qualify as serious or violent felonies. (Attempts to commit these crimes also qualify.) In addition, there are many crimes that, while not themselves listed in the three strikes laws, can become strikes because of the way in which defendants commit them (for example, seriously injuring a victim in the course of an assault).
The following is just a sampling of felonies that are “violent,” “serious,” or both in California:
If you’re facing any kind of criminal charge, even if you don't have a felony on your record or aren't currently facing one, you should consult an experienced criminal defense attorney. Only a knowledgeable lawyer can fully advise you of the applicable sentencing laws and adequately protect your rights.
]]>But when people get out of prison on parole, they agree to comply with certain conditions. State laws often specify the conditions. And a common condition is that the parolee has to submit to searches by law enforcement.
Very few cases in the federal system involve parole—in its place now is supervised release, which also carries conditions. Federal statutes give courts discretion to create special conditions for people on supervised release, and submitting to warrantless searches can be one such condition. (U.S. v. Hanrahan, 508 F.3d 962 (10th Cir. 2007); 18 U.S.C. § 3583(d).)
Courts often consider parolees to be in “constructive custody” of the government. In other words, courts have the view that the government has control over parolees even though the former prisoners are out in society. And courts believe that the government has a valid interest in keeping tabs on its parolees. So, warrantless searches that would have been illegal had ordinary citizens been involved are often lawful where parolees are the subjects.
Another rationale for allowing warrantless, suspicionless searches of parolees is the perspective that parole is a privilege rather than a right. Parole doesn’t come automatically: Inmates typically become eligible for it and then have to be granted it. Along these lines, most courts find that parolees have less of a right to privacy than other members of society. (U.S. v. Massey, 461 F.3d 177 (2nd Cir. 2006); Samson v. California, 547 U.S. 843 (2006).)
Search conditions typically say that former offenders agree to submit to searches of themselves, their residences, and their vehicles or property. Courts might find that searchable “property” includes electronic possessions, like an email account. (Sullivan v. Bunting, 975 N.E.2d 999 (Ohio 2012).)
Sometimes a parole search must be based on “reasonable cause” or “reasonable suspicion” of unlawful activity. Often, though, the search doesn’t require that kind of basis. Law enforcement generally can’t, however, perform searches just to harass.
While search conditions often list the supervising officer as the one who may conduct searches, other law enforcement officers may also be allowed to perform them. Even when an agreement doesn’t specifically authorize searches by other members of law enforcement, a court might determine that police officers may conduct searches that supervising officers could. (For example, see U.S. v. Woodland, 607 F.Supp.2d 904 (C.D. Ill. 2009).)
Example: Sam is a parolee. His state's law says that every parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” An officer sees Sam on the street. The officer knows Sam is on parole, but asks him whether he has an outstanding warrant. Sam says “no,” and the officer makes a call. The officer confirms that there is no warrant. The officer then searches Sam anyway. During the search, he finds a bag of methamphetamine. The search doesn’t violate Sam’s constitutional rights: The officer was allowed to search him because of his parole condition. (Samson v. California, 547 U.S. 843 (2006).)
If you are on parole or supervised release, you might be wondering about the contents of your release agreement and the laws regarding searches in your jurisdiction. Especially if you’ve been accused of violating parole or the law, an experienced attorney is a good bet for an explanation of the rules, your rights, and your options.
]]>When determining a sentence, a judge or jury (usually a judge) can consider all information that reasonably relates to the defendant’s culpability. Information of this type falls into two categories: information about the offense and information about the offender.
For guidance as to the factors they should consider, judges can look to statutes that list aggravating and mitigating circumstances. But the mitigating factors that a statute lists generally aren’t exclusive—judges can consider other criteria that relate to the defendant and the crime.
HOW MUCH TIME WOULD YOU ACTUALLY SPEND IN JAIL?
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.
Here are some common mitigating circumstances. The list is far from exclusive.
Minor role. The defendant played a relatively minor role in the crime. For example, suppose Pete received $20 for knowingly driving a codefendant to a location where the latter made a drug deal. At sentencing for his conviction for transporting methamphetamine, Pete has a good argument that his small role in the criminal activity is a mitigating circumstance.
Victim culpability. The victim willingly participated in the crime or initiated the events leading to it. If Domingo started a fight by attacking Walter and Walter responded with more force than was necessary to defend himself, this factor would come into play at Walt’s assault-and-battery sentencing.
Unusual circumstance. The defendant committed the crime because of temporary emotional difficulty or significant provocation. This circumstance applies when a defendant acts out while under extreme stress. For example, suppose that Jesse, in anguish over the recent death of his girlfriend, stole some beer from a liquor store so he could get drunk.
No harm. The defendant didn’t hurt anyone and committed the crime in a manner unlikely to cause harm. The no-harm circumstance would be relevant if Hank carjacked a driver by sternly ordering her out of her car, but carefully and gently helped her out of it.
Lack of record. The defendant doesn’t have a criminal record, or only has a relatively minor record.
Relative necessity. The defendant acted out of a desire to provide life necessities. This circumstance would be relevant for someone who stole a rotisserie chicken from the grocery store so that he could feed his starving family.
Remorse. The defendant accepted responsibility and showed remorse. A defendant who confesses upon arrest and is contrite in court has this factor in his favor.
Difficult personal history. The defendant’s unique upbringing or family circumstances led to her criminal conduct. For example, a lawyer might try to persuade a sentencing judge that the client’s violent acts are attributable to abuse she suffered as a child.
Addiction. Drug or alcohol addiction contributed to—but wasn’t just an incentive or excuse to commit—the crime. Addiction would be a mitigating factor for Bubbles’s theft conviction if he had showed a concerted effort at rehabilitation, but relapsed into drug use and stole some copper wire while high.
Not everything can be a mitigating circumstance. For example, some courts have ignored as a mitigating factor the defendant’s waiver of the right to a jury trial. One court rejected harsh prison conditions the defendant faced as a mitigator.
But as long as it bears some relation to the crime, defense lawyers often try to present just about every fact in the defendant’s favor at sentencing. Judges tend to have wide discretion in what they can consider, and an argument that doesn’t appeal to one judge might resonate with another.
]]>Parole involves the discretionary release of a prisoner before the end of their sentence. Time spent on parole is generally spent in the community under supervision. Being granted parole isn't guaranteed; release is up to a parole board.
Being eligible for parole isn’t the same as being granted parole. Most states require inmates to serve a certain portion of their sentence before parole will even be considered. Once eligible for parole, the inmate can go through the process of asking for parole. Every state’s parole application process is different—with some requiring an extensive application and hearing process and others being more of a formality.
Parole eligibility differs from place to place; each jurisdiction specifies when a prisoner becomes eligible for consideration. And not all crimes are eligible for parole.
Often, parole boards consider prisoners for parole only after they've completed a certain portion of their prison sentences, such as one-third or one-half of the maximum sentence imposed. If the judge imposes a minimum sentence, some states require an inmate to serve the entire minimum sentence, while others allow an inmate to shave time off their minimum sentence. (See "Good Time" below).
The severity of the current offense (and, sometimes, previous offenses) often affects when or if an inmate is eligible for parole.
In Louisiana, for example, eligibility dates are based on a number of elements, including:
For a first non-violent felony, eligibility may begin after the offender serves one-quarter of the sentence. But an offender with a second felony may have to serve two-thirds of the sentence before becoming eligible. Those with three or more felonies may not be eligible for parole at all. (La. Rev. Stat. § 15-574.4 (2022).)
Another factor that may affect eligibility is the conduct of the prisoner while behind bars. In Colorado, for example, an offender may be able to get an earlier eligibility date as a result of good behavior or progress toward goals. Misconduct during imprisonment, on the other hand, may lead to a later eligibility date. (Colo. Rev. Stat. §§ 17-22.5-403, -405 (2022).)
If the maximum sentence length is a life sentence, in order to determine eligibility dates, states may look at factors that include:
State law may also dictate a straightforward minimum term that must be served before an offender serving a life sentence is parole eligible, such as 30 or 40 years. These situations apply only to life sentences with the possibility of parole.
When an inmate enters prison, prison officials will often calculate possible parole eligibility dates based on the inmate’s record and state law. This date typically represents the earliest the inmate can be released IF granted parole. And the date can be pushed out for inmates who commit disciplinary violations or crimes in prison or who don’t complete the eligibility requirements (such as completing counseling).
As an inmate’s parole eligibility date approaches, the inmate will typically start preparing for the parole board hearing. The inmate might need to fill out forms stating why they should be granted parole. And the parole board will likely request court records, prison documents, and interview transcripts.
If a prisoner is eligible for parole, the parole board will follow a prescribed process to determine whether to actually grant this release. Each state uses different procedures.
In Colorado, for instance, after an eligible offender applies for parole, the parole board conducts an application hearing. During the hearing, the board will consider:
The victim of the crime may be able to attend the hearing.
(Colo. Rev. Stat. §§ 17-2-214, 17-22.5-404 (2022).)
After the parole hearing, the board will decide whether to grant or deny parole.
If the board grants parole, a few more steps must be completed before the inmate is released. For instance, the inmate will need to agree to conditions of parole and sign a parole agreement. And a parole officer must be assigned to monitor the inmate’s transition into the community and supervise the inmate’s compliance with the parole agreement.
Generally, if parole is denied, the board will indicate when the inmate becomes eligible for another parole review and will list factors the inmate needs to work on. An inmate may be able to appeal a denial.
No. Not all states use parole systems. Some states use a different system of supervised release after a person completes their prison sentence. For example, a state might require inmates to serve a set portion of their prison sentences behind bars (say two-thirds) and the remainder on supervised release in the community (one-third). In the federal system, supervised release has generally replaced parole. While parole is generally at the discretion of a parole board, supervised release is usually required once an inmate meets the statutory requirements.
Parole is complicated, and the laws that govern differ greatly. If you have questions about parole or supervised release, consider consulting a criminal defense attorney who knows the relevant state or federal system. Online research might also provide you with some basics on your state, such as checking out the website for a state's parole board.
]]>Supervised release provides a period of restricted freedom for recently released prisoners (often between one and five years). A federal judge will set the supervised release term (duration) and conditions at the time of sentencing. Although not mandatory for most crimes, judges impose supervised release in approximately 75% of cases.
During supervised release, the defendant must abide by the conditions of release and be supervised by a probation officer. A former prisoner who violates the conditions of supervised release may be sent back to prison, potentially to remain there until the end of the supervised release term. The judge retains jurisdiction over a defendant's supervised release and will make decisions regarding early termination (for good behavior) or modification or revocation (for violations).
Supervised release differs from parole in several respects.
And what about probation? Similar to supervised release, a judge (rather than a separate board) makes decisions regarding probation. But unlike supervised release, which occurs after completion of a prison sentence, probation is served in lieu of a person's prison sentence. It's a chance for the offender to serve their sentence in the community while supervised and potentially avoid prison. If the probationer violates their conditions, a judge can revoke probation and send the offender to prison to start their sentence.
(18 U.S.C. § 3583 (2021).)
]]>This article discusses what parole means and how it generally works, but laws and procedures can vary from state to state.
Under parole as most people think of it—sometimes called "discretionary" parole—an inmate gets out of prison early and serves some part of the remaining sentence under parole supervision.
Under the traditional parole system, parole is a privilege for prisoners who seem capable of reintegrating into society. It’s not a right. Although some criminal statutes carry a right to an eventual parole hearing, typical laws don't absolutely guarantee parole itself. Authorities retain the discretion to deny parole to prisoners they deem dangerous. (Often, a parole board that denies parole to a prisoner sets another parole hearing at some later point, sometimes after several years.)
State law can provide that some kinds of convictions make prisoners ineligible for parole or eligible only after a very long prison sentence. Indeed, life without parole, regularly referred to as "LWOP," is a common alternative sentence to the death penalty.
Many prisoners do, however, become eligible for parole. Commonly, after a parole board finds that a prisoner is eligible, the inmate appears at a parole hearing. If granted parole, the parolee is released and lives free in society but under the continued supervision of the prison authority. (Parole decisions can involve multiple steps—for instance, review by a panel from the parole board and then review by the whole board. In a few states, the state governor gets to review the parole decision and might have the option to reverse at least some parole grants.)
Often, the prison authority primarily supervises the parolee through mandatory visits with a parole officer. State parole services (usually a branch of the department of corrections) may provide transitional services tailored to the parolee’s needs, such as shelter in a halfway house or intensive mental health counseling.
Once out on parole, a parolee enjoys the privilege of relative freedom in return for abiding by certain conditions. Some common parole conditions are that the parolee:
Under a typical parole system, the parolee is assigned a parole officer and must meet with that officer periodically. The parole officer may also make unannounced visits to the parolee’s home to check that the parolee is truly abiding by the relevant conditions. Unannounced visits let the officer observe whether, for example, there is evidence of parole violations like drug use.
To violate parole is to fail to live up to its conditions. The violation could be a bad act (like committing a new crime) or a failure to act (like not getting the parole officer's permission to leave the county or state before going out of town).
Violating parole by committing a crime can often land parolees back in prison or in jail. Some of the more minor or technical violations, such as prohibited alcohol use, could result in parole authorities imposing stricter or additional conditions rather than immediately commencing back-to-prison (revocation) proceedings. For instance, a parole officer might refer the parolee to substance abuse counseling (including, for example, AA meetings) and require proof of attendance. If the parolee fails to comply with the requirement, or if the parole violation was serious enough, the authorities may begin revocation proceedings.
At a typical hearing, the decision-maker, whether a judge, the parole board, or part of the parole board, will consider the nature and circumstances of the violation. (Parole violation proceedings can involve multiple steps, such as a hearing before a parole officer and then before the board itself.) The decision-maker determines whether to send the parolee back into custody. Depending on the rules of the jurisdiction, the prisoner may spend weeks, months, years, or the remainder of the original sentence back behind bars. The prisoner may also be granted a new parole hearing set to occur after serving some specified time.
Parole law varies by state. If you have questions about it or want to know how the law applies to you, consider speaking with a qualified lawyer. A knowledgeable lawyer will be able to more fully explain the law and procedures, including whether parole decisions are final. You may also find valuable information by searching for online resources. Some government and nonprofit websites provide helpful information.
]]>In general, judges have broad discretion to decide whether and what kind of community service to order for an offender. As long as the sentence reasonably protects the public’s interests and isn’t unduly harsh, all different kinds of community service options are available. However, there are a few guidelines that judges must follow when crafting community service sentences.
Community service may be ordered as a stand-alone sentence or as a condition of probation for many types of crimes, and in fact may be a required condition of punishment for crimes like looting or damaging property. However, community service is typically unavailable for serious offenses punishable by death or life imprisonment.
The main requirement of any community service sentence is that it benefit the community. Thus, a judge may order a bank executive who misappropriated bank funds to volunteer for a community organization and donate funds to that organization. The judge might choose this sentence as an alternative to a term of imprisonment and in-prison restitution programs. This donation of charitable services in a public forum benefits the community in two ways:
While there are many forms of community service that can benefit the public, there must be a direct connection between that service and the crime. For example, courts have struck down community service sentences that involve public organizations with no ties to the offender or the crime.
Suppose a corporate executive with no substance abuse history is convicted of misappropriating corporate funds for personal use; the judge orders the exec to pay restitution to a community substance abuse facility. If the defendant challenges the sentence, an appellate court will likely strike it down—that’s because the rehab facility has no relation to either the offender or the crime.
In many instances, judges determine that the community will benefit from a substance-abusing offender entering a rehab program. The community will benefit because the judge believes the offender is unlikely to continue to commit crimes with proper substance-abuse treatment. However, an offender’s mere attendance and participation in a treatment program is usually not enough, standing alone, to meet the “for the benefit of the community” test. Typically, judges will also require the offender to do work over and above program participation, like one or more of the following:
Although they have considerable leeway in setting sentences, judges can’t impose community service that unduly interferes with an offender’s due process rights, including the opportunity for paid employment, the maintenance of a normal family life, and the preservation of a stable home environment. Examples of sentences that courts have found invalid include:
The period of community service a judge orders can’t go beyond the maximum sentence for the crime. For example, say that state law provides that the maximum sentence for embezzlement is ten years in prison. A judge may not sentence an embezzler to seven years in prison and five years of community service, because the aggregate sentence exceeds ten years.
If you’ve been charged with or convicted of an offense and wonder whether community service is possible, consult an experienced criminal defense attorney. Only such a lawyer can advise you of all options and protect your rights.
]]>Judges generally have the discretion to consider a wide variety of factors when sentencing criminal defendants. In most states, the judge isn’t bound by all the rules of evidence that apply during trial. The result is sentences that are partially based on information that wouldn’t be admissible at trial and that hasn’t been proven beyond a reasonable doubt. This can come as quite a shock to a defendant who has had a charge dismissed either before trial or as part of a plea bargain, only to hear the judge mention that charge as a factor in determining the sentence.
Federal sentencing law goes so far as to say that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court...may receive and consider for the purposes of imposing an appropriate sentence." (18 U.S.C. § 3661.) Although courts have held that the information must be reliable. (U.S. v. Heckel, 570 F.3d 791 (7th Cir. 2009).)
Despite judges’ wide latitude at sentencing, some states have set limits on considering dismissed charges. Among these limits are those providing that judges can’t factor in dismissed charges if:
Even states that limit judges’ consideration of dismissed charges may still let a sentence stand if the judge had other valid reasons for imposing it. Generally, higher courts won’t overturn a judge’s sentence unless it results from an “abuse of discretion.” So, even if the judge improperly considered a dismissed count, an appeals court probably won’t overturn it if the judge gave other, proper justifications for the sentence.
Criminal sentencing is one of those areas of law that differs greatly between federal and state courts, as well as from state to state. Only an experienced attorney familiar with the laws of your jurisdiction can properly advise you about the pros and cons of going to trial or agreeing to a plea. A criminal defense lawyer can effectively represent your interests at each stage, including sentencing, and determine whether you have a viable challenge to a judge’s sentence.
]]>Probation is considered an act of leniency. But a defendant who’s been granted probation isn’t completely out of the woods. The possibility of jail or prison time still looms, as a probationer who violates a condition can land in hot water. (For more on violations of probation, see Probation Revocation.)
A California judge who grants probation is supposed to at the same time specify whether:
If the defendant later violates probation, the sentencing options available to the judge depend on whether he or she originally ordered ISS or ESS.
With ISS, the judge typically orders probation for a certain number of years without specifying a sentence. ISS gives the court the most flexibility should the defendant later violate probation. If the defendant does violate probation, the judge has two basic options:
When a judge grants probation with ESS, she announces the sentence, then suspends its “execution.” If the defendant later violates probation, the judge has the same options as with ISS: reinstate probation or order a sentence. The difference between ISS and ESS lies in the sentence the judge orders, if she indeed chooses to order one. With ISS, the judge gets to choose the sentence; with ESS, the judge must implement the sentence she previously chose but suspended. The judge can’t modify the sentence in any way.
For instance, a judge could sentence a defendant to five years in prison and suspend the sentence for five years (those five years equal the period of probation). Defense attorneys would call this a “five-year hammer.” If the defendant violates probation and the judge decides to implement a sentence, the judge must send the defendant to prison for five years. Period.
Occasionally, a judge suspends the imposition or execution of a sentence without explicitly ordering probation. This kind of order has the effect of putting the defendant on probation. That’s because California courts don’t have the authority to order ISS or ESS without granting probation.
]]>
Those on informal probation aren’t formally supervised and don’t have probation officers that they have to report to. Informal probationers report directly to the court, and they typically only need to do so when they:
Because informal probationers don’t have probation officers looking over their shoulders, they’re less likely to pick up a probation violation than those on formal probation.
Someone on formal probation is supervised by a probation officer. A formal probationer ordinarily must meet with the officer anywhere from once a week to once a month, depending on what the officer requires. Most probation officers will require more frequent meetings, at least initially, for “high risk” probationers—ordinarily, those convicted of serious crimes or with long criminal records.
Following several years of good behavior, some judges are willing to modify formal probation to informal probation.
In most infraction and misdemeanor cases where the judge orders probation, it will be informal. (In practice, most infraction cases result in only a fine; judges rarely order probation.) If the judge orders a drug-testing condition in a misdemeanor case, probation will typically be formal—that’s so a probation officer can supervise the testing. Probation in felony cases will almost always be formal.
]]>At any time before a term of supervised release or probation ends, a federal court may modify the original conditions. In deciding whether and how to modify, courts consider the same factors involved in the initial ordering of supervised release or probation. These factors include:
For probation modification, judges also consider:
Although judges consider the same factors they originally considered in setting the probation or supervised release term, they consider them at a different point in time. In that way, modification allows flexibility for circumstances that might change over time.
Early termination and extension of supervised release and probation are also possibilities when a judge reconsiders a defendant’s status.
Supervised Release. After considering the relevant modification factors (above), the court can discharge a defendant from supervised release—in other words, free the defendant from supervision. But the defendant must first complete one year of supervised release. Judges can’t discharge early when the supervised release is one year or less. And the court must find that the defendant’s conduct and the interest of justice warrant discharge.
Probation. The court can discharge a defendant from probation after one year in felony cases, and at any time for misdemeanor and infraction convictions.
On the other hand, a judge can extend supervised release or probation if circumstances warrant it. But the extended term can’t be longer than the maximum term that the judge could have originally ordered.
If, after a hearing, a judge finds that a defendant has violated a condition of probation or supervised release, the judge has options. The judge can continue the defendant on probation or supervised release, modifying or not modifying the conditions or the length of the probation or supervised release. The judge also has the option of revoking the probation or supervised release.
A judge who revokes probation can resentence the defendant to any sentence that was originally available for the defendant’s crime. For violations involving drug or firearm possession, refusing to take a drug test, or testing positive for drugs more than three times in a year, the judge must revoke probation or supervised release and sentence the defendant to prison. The federal sentencing guidelines also recommend that the judge revoke probation if the violation is based on a state or federal felony offense.
A judge who finds that an offender violated the terms of supervised release can send the defendant to prison for all or part of the maximum term that was originally available for supervised release. The defendant doesn’t get credit for the time she’s already spent on supervised released.
But the imprisonment can’t be longer than:
A judge who orders someone on supervised release back to prison can order another term of supervised release to follow the time in prison. But the supervised release term can’t exceed the maximum allowed for the defendant’s original offense. Here, the defendant’s time in prison counts toward the maximum term of supervised release.
If the government—state or federal—has charged you with a crime, consult a qualified attorney who practices in the relevant court system. An experienced lawyer can more fully advise you of the law and explain how it applies to your situation.
]]>Say a jury convicts a defendant of two charges. The judge sentences her to three years in prison for Count 1 and two years in prison for Count 2.
Consecutive sentences. If the judge orders the sentences to run consecutively, the total prison sentence is five years. She'll serve Count 1 for three years and then Count 2 for 2 years.
Concurrent sentences. If the judge were to order that the sentences run concurrently, the defendant’s sentence would be three years—she would serve the two-year sentence simultaneously with the three-year sentence.
The amount of time a defendant actually spends behind bars will depend on other factors, such as parole, good time, and supervised release. For more detail on these concepts and the surrounding law, see Concurrent and Consecutive Sentences, and Double Punishment.
]]>This article gives you an overview of the federal sentencing guidelines. For more details, see our article, Federal Sentencing Guidelines, which includes sentence ranges.
Congress intended the Guidelines Manual to be mandatory. However, many judges complained that in practice it was often too harsh and too rigid. In the case of U.S. v. Booker (2005), the U.S. Supreme Court imposed two major limits on the Guidelines Manual’s reach.
First, the sentences specified in the Guidelines Manual are advisory, not mandatory. That is, federal judges may consult the manual but they are not bound to impose the sentences it calls for. The upshot of Booker is that federal court trial judges often have considerable sentencing discretion, and appellate court judges can overturn trial judges’ sentences only for an abuse of discretion (Gall v. U.S., U.S. Sup. Ct. 2007).
For example, if a federal trial judge believes that the recommended punishment for possession of crack cocaine is unduly harsh—as compared to the recommended punishment for powder cocaine—the trial judge has discretion to give a lesser sentence for possession of crack cocaine, and the judge’s decision is final even if it is outside the guidelines’ range, as long as it is reasonable (Kimbrough v. U.S., U.S. Sup. Ct. 2007). At the same time, sentences that are within the guidelines’ range are presumed to be reasonable (Rita v. U.S., U.S. Sup. Ct. 2007).
Federal courts are in disagreement about whether a federal law that provides for lighter punishment for some minor drug offenses is mandatory. (For a decision ruling that this law is mandatory, see United States v. Cardenas-Juarez (9th Cir. 2006).)
Second, a judge cannot “enhance” a sentence unless an offender has either admitted to the facts giving rise to the enhancement or a jury has concluded that those facts are true. For example, a judge may consider increasing a sentence because an offender injured someone in the course of committing the crime. In order to stiffen the sentence for this reason, the offender either has to admit that the injury occurred, or, in response to evidence at trial, the jury would have to conclude that the offender caused the injury.
In 2006, a report issued by the U.S. Sentencing Commission concluded that despite the Booker decision, most judges hand down sentences that conform to the Guidelines Manual. Moreover, the average length of sentences has increased slightly since the decision.
]]>There are, however, situations in which the prosecution may agree to drop or hold off on filing charges, such as diversion or pretrial interventions. And despite the general prohibition against settling criminal charges for monetary consideration, in many states, defendants can resolve certain misdemeanor charges through financial settlement with the victim. (To learn more, see Civil Compromise for a Criminal Offense.)
Although there are many ways—including (but not limited to) diversion programs, mental health and drug courts, and expungement and record-sealing opportunities—to avoid or minimize the effects of a criminal conviction, only a knowledgeable criminal defense attorney can properly evaluate whether they apply to your situation. Make sure to consult a lawyer versed in local court practices if you want to pursue any of them.
]]>Because a sentence of probation is usually an alternative to a jail sentence, courts have found that probationers have reduced expectations of privacy—that is, they don't have the same Fourth Amendment rights as others. That’s why courts can require probationers to submit to warrantless searches not supported by probable cause. The goal is to help rehabilitate the probationer, protect society, or both.
Although officers usually need probable cause before they can search a person or home (they typically need a warrant for the latter), a search condition eliminates this requirement. In some states, an officer must have reasonable suspicion before conducting a probation search, but in others, an officer can conduct one at any time, even without reason to believe that the probationer committed a crime. Some search conditions allow only probation officers to search, while others authorize both probation and police officers to do the same.
Any time, any place. The strictest type of probation search condition requires that the probationer agree to any search at any time by a probation officer or police officer. Under this condition, the officer doesn’t need to suspect the probationer of a crime before searching.
Reasonable suspicion. Another common type of search condition requires that the probationer agree to reasonable searches at reasonable times. In this case, the officer must have “reasonable suspicion” that the probationer has committed a crime or possesses contraband (such as drugs, weapons, or stolen property).
Contraband. Yet another kind of search condition allows an officer to search a probationer only if the officer has reason to suspect that the probationer possesses drugs, weapons, or both. This is sometimes called a “drug search condition” or “contraband search condition,” because it only allows an officer to search for drugs or weapons, not for evidence of other crimes.
Whether there is reasonable suspicion for a search depends on what the officer observes. Some examples of reasonable suspicion to search a probationer's home include:
When the probationer has been convicted of a drug crime or has a history of drug or alcohol abuse, the judge can almost always include a search condition as part of probation. Courts have found that search conditions help prevent further drug or alcohol abuse. Even in cases that don't involve drugs or substance abuse, courts routinely consider search conditions valid.
Example: Shawn is convicted of receiving stolen property. He has been convicted of drug and theft crimes before. The judge sentences him to three years of probation and includes a search condition. The probation officer searches Shawn's home and finds marijuana. The court finds that the search is reasonable, because the search condition was related to Shawn's rehabilitation based on his history of drug and theft crimes. (Allen v. State, 258 Ga. 424 (1988).)
Defendants may occasionally be able to avoid a probation search condition by objecting at the sentencing hearing, when the judge sets the conditions of probation. That’s why it’s important that you have knowledgeable legal counsel (your lawyer will also be able to determine whether objecting to the search condition is a bad idea).
If the case involves a guilty plea, a lawyer should discuss the conditions of probation with the prosecutor before the plea. Depending on the circumstances, the prosecutor might agree to a modification or elimination of a search condition. Once a defendant agrees to a probation search condition, it is very difficult—if not impossible—to successfully challenge a subsequent search.
]]>To prepare the report, a probation officer (or a social worker or psychologist working for the probation department) first interviews the defendant and checks the defendant’s rap sheet (criminal record). The probation officer typically talks to the victim, the arresting officer, and the defendant’s family and friends.
In addition to the information gleaned from these sources, most probation presentence reports also provide:
Good defense lawyers make sure that the probation officer preparing the report hears about all the good things the defendant has done and is doing. For example, if the defendant has enrolled in an addiction treatment or counseling program or has an employer willing to say nice things about him, a defense attorney will transmit that information to the probation officer. It’s important that the defense make the presentence report appear as favorable to the defendant as possible, because the report is likely to have a significant impact on the judge’s sentencing decision.
Probation officers often question defendants very closely. An officer is likely to want to know a defendant’s:
The defendant should come to the interview prepared to talk about these topics. Whenever possible, the defendant should bring documents that provide these facts (for example, a letter from an employer or military discharge papers). The defendant also should be prepared to explain why probation or some other lenient sentence is appropriate under the circumstances.
Judges typically don’t have time to investigate the circumstances of individual cases, so they usually rely heavily on—and often rubber-stamp—sentencing recommendations in presentence reports. For this reason, it is important for the defendant to make a positive impression on the probation officer preparing the report.
The defendant should be as prepared as possible before meeting with the probation officer, because the defendant may not be allowed to bring a lawyer into that interview. Preparation is also critical because probation officers may rely, when making their recommendations, on information that would not have been permissible in court at trial, such as inadmissible hearsay and illegally obtained evidence. The defendant must be careful about what he or she says in the interview, because probation officers can use the defendant’s statements in their reports.
Probation officers are at least as overworked as other players in the criminal justice system. And they are as susceptible to tough-on-crime public opinion as anyone else. Thus, many use “boilerplate clauses” (prewritten clauses used in case after case) in their reports. And the probation officer may prepare a report that justifies predetermined decisions rather than weighing the merits of an individual case.
Defense lawyers, well aware of the limitations under which many probation officers work, often take a number of steps to try to ensure that a judge is aware of information favorable to the defendant. Defense lawyers can:
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>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:
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:
If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):
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, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.
Yes, lesser sentences can include suspended sentences, probation, restitution (victim compensation), and community service. Diversion programs, available to some defendants charged with misdemeanors involving drugs or alcohol, also may be available. For details, see Sentencing Alternatives: Prison, Probation, Fines, and Community Service.
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.