FAQ on Criminal Sentencing

How judges decide on punishment for those guilty of crimes.

Questions

Where can I find the recommended penalty for crimes?
Do those guilty of the same or similar offences face the same punishment?
What elements do judges consider while passing sentences?
Can my lawyer get a different sentence?
Who decides on the sentence for a guilty defendant?

Where can I find the recommended penalty for crimes?

The penalty is often determined by the legislation that a person is accused with breaking. For example, a misdemeanor legislation may go on to say, “For a first-time violation, 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 may classify a certain act as a misdemeanor or felony without defining the penalty. In this case, the penalty is specified in a separate act, either for that specific misdemeanor (or felony) or, in certain jurisdictions, for all misdemeanors.

However, sentencing often changes depending on a defendant’s history and the facts of a given case. As a consequence, if convicted, a defendant’s actual sentence may be shorter than the maximum time provided by a legislation. If you want to find out what your probable sentence will be if you are guilty, you may do the following:

Pay for an hour of consultation with a private defense attorney. An skilled defense attorney can often forecast the eventual sentence.
Speak with a public defender’s office attorney.
Request informal, unpaid guidance from a family or close friend who is a criminal defense attorney.

Do those guilty of the same or similar offences face the same punishment?

Some states have “mandated” penalties, which restrict the judge’s discretion when it comes to determining punishment. State legislators enact mandatory sentencing legislation in response to the public’s wish to abolish judicial tolerance and punish all persons who commit the same law equally. Federal law used to impose obligatory punishments, but they are now more like recommendations.

Most criminal legislation do not include obligatory punishments. Rather, judges may consider a variety of variables while determining a suitable sentence. For example, judges may take into account the following factors:

the offender’s prior criminal record, age, and intellect, the circumstances surrounding the offense, and if the defendant sincerely feels sorrow.

What elements do judges consider while passing sentences?

If the court has the authority to give a lesser sentence, the defense may bring to the judge’s notice an unlimited number of factual considerations that may sway the judge to impose a reduced punishment. These are some instances of such conditions (also known as “mitigating” factors):

The culprit has no or little criminal history.
The criminal was an accomplice to the crime (he assisted the primary perpetrator) but not the primary actor.
The criminal committed the crime when under extreme personal stress, such as after losing a job, falling behind on rent, or being involved in a vehicle accident.
No one was injured, and the crime was perpetrated in such a way that no one was expected to be harmed.

In the same way that mitigating circumstances might persuade a court to reduce a sentence, “aggravating” factors can drive a judge to “throw the book at” an offender. The most prevalent aggravating factor is a prior record of the same sort of crime. Other aggravating factors arise as a result of the manner in which a crime was committed, for as when an offender is extremely cruel to a victim. Laws may also mention aggravating elements, such as the use of a weapon.

Can my lawyer get a different sentence?

Yes, penalties that are less severe may include suspended sentences, probation, restitution (victim compensation), and community service. Some offenders charged with crimes involving drugs or alcohol may be eligible for diversion programs. See Sentencing Alternatives: Prison, Probation, Fines, and Community Service for more information.

Who decides on the sentence for a guilty defendant?

Even after jury trials, judges, not juries, virtually invariably choose the sentence. In fact, a standard jury instruction instructs jurors not to consider punishment while determining a defendant’s guilt or innocence.

In a few occasions, jurors do participate in sentencing decisions; for example, in capital penalty cases, juries are often left to decide if death is appropriate.

When a law specifies factual conditions that might result in a heavier penalty (for example, the use of a weapon in the commission of a crime), a judge cannot impose the harsher punishment unless the jury determines that the circumstances were present beyond a reasonable doubt.