Sentencing the Guilty Defendant

Criminal Defense Guide

• Talking to Police
• Search and Seizure Rights
• Arrested: Your Rights
• Booking and Making Bail
• Getting a Criminal Lawyer
• Eyewitness Identification
• Criminal Arraignment
• Planning a Defense
• The Criminal Trial
• Pre-Trial Investigation
• Discovery During Trial
• Preliminary Hearings
• Defendants Rights at Trial
• Motions and Trial Procedure
• Evidence in a Criminal Trial
• Plea Bargaining
• Appeals
• Court for Juvenile Crimes
• Rights of Prisoners
• Common Criminal Defense Terms

Following a guilty or no contest plea, or a guilty verdict at trial, defendants will be sentenced, or receive their punishment, for their crimes. If convicted at trial, the presiding judge will determine the sentence of the convicted individual. Typically, judges will also approve plea deals worked out by defense attorneys and prosecutors prior to trial that resulted in no contest or guilty pleas. However, it is not mandatory that a judge do so, and in their best interest, defendants should place into writing stating their guilty plea is pending approval of the plea deal by the judge. The Eighth Amendment prevents cruel or unusual punishment for prisoners, which according to recent court rulings, does not apply to dangerous, overcrowded, or even unsanitary prison conditions.

Three Strikes Laws and State Minimum Sentences

Further confusing the sentencing laws regarding crimes, many states have issued mandatory minimum sentences for crimes, which are noted in their state criminal law code. In these cases, judges are required by legislative law to issue a minimum sentence for individuals convicted at trial. Additionally, three strikes laws in some states create further problems during the sentencing phase. For example, some individuals will face their third strike as the result of relatively minor offense, which will require them to serve lengthy prison sentences regardless. The Supreme Court has upheld these convictions, but for offenders with previous crimes before the enactment of the state three strikes rule, their legal rights get even murkier. As a good general guideline, there are certain characteristics that may persuade a judge to offer individuals more favorable sentences, including:

• The demeanor, statements, and cooperation of defendants during the trial
• The certain aspects of a given case that mitigate the responsibility of the individual as the main perpetrator of the crime
• The past criminal history of an individual
• The mindset and intentions of the individual during the crime in question
• The results of the crime, such as personal injuries, property damages, or other expenses or personal costs
• The determination of whether the crime was violent or predatory

Sentencing Procedures in Criminal Cases

Depending on the potential penalties, judges may sentence misdemeanor cases immediately following the return of the verdict. In felony cases, the sentencing hearing may be days to weeks later, which is the next step to the judge handing down a sentence in cases with the potential for lengthy incarceration periods. During the sentencing period, a judge will allow individuals to make personal statements, known as allocution, as well as allow statements from other individuals in support of the convicted individual's good character. Additionally, victims or their loved ones can also make statements before the sentence is handed down. Before any sentencing hearing, however, a judge will gather information from a probation officer, who delivers a "presentence" report to the presiding judge.

Probation officers prepare a presentence statement for judges to review in order to make better-informed sentencing guidelines for individuals. In the common presentence report, a probationary officer will gather information in the time between conviction and sentencing. The report often contains information from all aspects and parties involved in the crime. For example, statements from victims are included, as well as statements from other persons involved in the crime. Additionally, defendants will want to stress all positive attributes in their life, mitigating factors of the crime, and virtually anything that will potentially shine a positive light in the eyes of the sentencing judge. The defense is allowed to view the final submitted presentence report given to a judge before the sentencing, and if there are factual mistakes, the defense can dispute these.

Common Sentencing Options during Criminal Trials

In recent years, the courts have attempted to steer away from the usual punishments of jail and fines when sentencing individuals. In an attempt to make more rehabilitative efforts, as well as reduce the strain on overcrowded jails and prisons, alternative sentencing options are frequently part of a sentencing arrangement. However, fines and incarceration are regular sentences issued in the courts, which still enforce the law.

Incarceration Sentencing

If you are sentenced to incarceration, your eventual destination, whether jail or prison, will depend on the length of your sentence and the jurisdiction where your crimes were committed. Jails cater to short-term sentences for misdemeanor offenses, as well for inmates awaiting trial in lieu of paying bail. For longer sentences, inmates are sent to state or federal prisons to serve out the remainder of their sentence. The length of your incarceration will be somewhat determined at your sentencing by a judge. Depending on the state, you will be given a determinate, which specifies a specific length of incarceration, or indeterminate sentence, which does not specify a specific date, but only a maximum and minimum length. In some circumstances, individuals may be sentenced to time served, which means the amount of time they were previously incarcerated covers the potential incarceration periods the judge was going to sentence. Additionally, some individuals may have their sentences suspended, which means they do not have to serve the sentence unless they violate specific terms of their probation. Another common term used in sentencing is "to be served consecutively" or "to be served concurrently", which explains whether a defendant can serve sentences for multiple crimes at once, or if they must serve out each sentence individually.

Probation and Criminal Sentences

In lieu of incarceration, some offenders may be afforded the opportunity to serve their sentences via probation. While on probation, individuals are required to meet all of the terms of their probation agreement, which if violated, can land them in jail indefinitely. Typically, other requirements of probationary periods include checking in with a probation officer, as well as rehabilitative requirements, such as mandatory substance abuse counseling, anger management counseling, or even taking psychiatric drugs as prescribed. Another part of a probation arrangement may include community service sentences, which must be served out according to rules and procedures of the jurisdiction where the crime occurred.

Sentencing and the Death Penalty

The death penalty is a hotly contested legal issue, which is sometimes influx as a trial occurs. For the most part, a judge can only sentence an individual to the death penalty upon the recommendation from the jury, and even then, the judge can refuse to do so. Additionally, a certain small number of crimes legally warrant the death penalty, which is typically reserved for murders committed in commission with another violent felony.

Fines and Criminal Sentences

Along with incarceration for crimes, many crime law books require payment of fines for crimes committed. Typically, lesser level misdemeanors can be resolved through the payment of fines. Part of the probation process involves regular payments to a probation office, which if not made promptly, can result in violation of probation and incarceration. However, serious crimes that have financially damaged the government, a specific organization, group of people, or even one person, may have restitution payments as part of the sentencing. In many cases with specific victims, individuals also expose themselves to the risk of a civil judgment requiring payment to victims as well.