Criminal Sentencing

The criminal sentencing process is a complex system of laws and policies. This article summarizes how criminal sentencing works in both state and federal criminal court systems.

State And Federal Criminal Sentencing

Goals of The Criminal Sentencing Process:

Irrespective of whether the sentencing authority comes from a state or federal court, the purpose behind a criminal sentence is that it reflects four primary public policy goals:

• Retribution: Retaliation for the wrongs committed by the offender upon society.
• Rehabilitation: Help restore the offender’s behavior to acceptable social norms.
• Deterrence: Discouraging similar criminal conduct by making an example of the offender.
• Incapacitation: Removing the offender from society in order to protect the general public.

State Criminal Trial – Sentencing

A criminal sentence can range from diversion and suspended sentence to consecutive life terms in prison and, under special circumstances, the imposition of the death penalty.

State Sentencing Practices

This sentencing process can vary significantly depending on state jurisdiction.

In most states, the court will usually calendar a sentencing hearing after the defendant is found guilty and post-trial motions have been ruled on.

State Felony Sentencing Hearing

At the sentencing hearing, both the prosecutor and defense counsel will have reviewed the probation report and supporting documents and statements. Counsel will present their respective sentencing arguments to the court. The offender will also be present. The defense will argue there are mitigating circumstances supporting a reduced sentence, while the prosecution will argue there are aggravating factors to support an enhanced sentence.

Misdemeanor Sentencing

There is usually no sentencing hearing for less serious offenses such as misdemeanors. Also, it is not uncommon for the plea and imposition of sentence to occur as early as the initial or at a continued arraignment. In most cases, an early guilty plea signals the matter is resolved by plea bargain.

Misdemeanor – Open Pleas

At the time of arraignment, if the defendant does not have counsel, the court will usually continue the arraignment date to give the defendant additional time to retain counsel. As a matter of practice, courts are reluctant to accept a guilty plea without defense counsel present.

This is particularly true if the defendant had not yet spoken to a lawyer. Pleading guilty without the benefit of knowing the specific terms of the sentence is called an open plea and is almost always ill-advised.

Plea Bargains Favored

The court, prosecutor, and defense counsel favor plea bargains. It expedites the process and encourages otherwise weak cases to resolve quickly. For example, in states like California, a prosecutor may offer to dismiss a drunk driving charge if the defendant agrees to plead to a lesser offense, such as reckless driving.

The defendant can receive a favorable plea bargain when the prosecutor’s case is weak, such as when the defendant’s breath test result did not exceed the legal limit. Conversely, when the defense counsel faces a strong case and the prosecutor makes a reasonable offer, the defense counsel will likely recommend the defendant accept the plea bargain.

Pre-sentencing Report – Felonies

In both state and federal criminal courts, after the defendant has been tried and convicted of a felony but before sentencing, the judge will likely have already ordered a presentencing report from the probation department.

The presentencing report is available to the court, prosecution, and defense counsel, and its findings often carry convincing weight with the court.

A presentencing report usually includes a personal interview with the defendant and an investigation into the defendant’s personal history and prior criminal acts. The report is intended to be an objective and unbiased assessment of the offender.

The report provides the court and counsel with important information about the defendant’s character, life experience, work history, personal and family history, level of education, and any special circumstances that may impact whether the offender is a good candidate for rehabilitation or whether the sentence should focus on punitive measures.

Factors Courts Consider in Sentencing Decisions

Aggravating Factors

Aggravating factors include the offender having repeatedly committed similar crimes in the past; the offender engaging in unnecessary violence and showing a blatant disregard for public safety; the offender’s mental state demonstrating malice or premeditation of the offender or was in unlawful possession of a firearm during the commission of the crime.

Mitigating Factors

Mitigating factors include whether the offender is in his advanced years; was under serious financial and personal stress; recently lost a job; suffers from a chronic emotional illness; lacks a criminal history involving violent acts or serious felonies, and was accessory not the principal perpetrator of the subject crime.

A Shift in Public Sentiment for Sentencing Reform

Public sentiment concerning long-term sentencing has shifted recently, especially concerning mass incarceration for nonviolent drug offenders.

A November 2018 research article published by TheSentencingProject.org determined that long prison terms have been counterproductive to public safety and have resulted in diminishing returns to society.

In addition, the publisher pointed to a growing sentiment that the current state of Americans believes that mass incarceration policy is fiscally and morally irresponsible and unsustainable.  Finally, the article points out there are many ways in which sentencing policy related to long-term imprisonment can be changed to produce more rational outcomes for both the individual and society.

Federal Sentencing

Congress has established minimum and maximum punishments that help judges shape sentences that fit the crime. It also provides federal judges with a uniform structure that informs and guides them so that sentences are consistent with federal criminal law and its fair and equal application to offenders.

Being sentenced to federal prison in criminal cases is determined by (1) the criminal statute, which sets the maximum penalty in the form of a fine or imprisonment, and (2) the federal criminal sentencing guidelines.

Federal Sentencing Guidelines

The court receives specific sentencing guidance from several sources at the federal level. One such source comes from the United States Sentencing Commission, which publishes Sentencing Guidelines for Federal District Courts to follow.

The guidelines provide recommended sentences for certain types of crimes and various aggravating and mitigating factors that the court may consider to enhance or reduce the scale of statutory penalties.

Defendant’s Criminal History

A defendant’s criminal history is based upon the nature of his prior record. Some offenses count more than others. Some do not count at all based on the defendant’s age or the nature and character of the crime.

Points can also be added. For example, the defendant was on probation or parole when the crime was committed, or the defendant was recently released from custody when they committed the crime.

The lowest category is reserved for defendants with no record. In contrast, the highest category is VI for defendants with a long history of such convictions.

The amount of prison or custody time will correspond to the severity of the defendant’s criminal history. Each crime has a specific point value. The points can be adjusted up or down based on certain features of the offense, including:

• The degree of the defendant’s bad behavior
• The degree of the victim’s role and relationship to the defendant
• Whether the defendant played an aggravating role in the offense
• Whether the defendant played a mitigating role in the offense
• Whether the defendant accepted responsibility.

Presumptive Range in Sentencing

A presumptive sentence range is determined once the court has calculated the defendant’s adjusted offense levels and criminal history.

The court is then authorized to depart up or down from the presumptive range. The presumptive sentence range depends on a host of possible factors, including:

• The actual circumstances of the crime
• The overall character of the defendant
• If the court determines the guidelines did not adequately consider the crime.

Court Discretion

It is the decision of the court whether to depart from the guidelines and is within the court’s discretion. The court’s discretion will not be reviewed on appeal. Notwithstanding, the court’s actual calculation for the presumptive guidelines range can be appealed if there is a reasonable basis to believe an error was made.

Victim’s Right to be Heard at Sentencing Hearing

Under federal rules, at sentencing, the victim must be given the right to address the court concerning the crime’s impact and personal harm and loss the victim suffered resulting from the offender’s criminal acts.

The victim has the additional right to ask the court to impose the strictest punishment law allows. Conversely, although this seldom occurs, the victim can ask the court to consider leniency in sentencing the offender.

Post-Sentencing – No Parole

Unlike the state court system, federal trial courts do not allow parole. However, if the prisoner behaves well in custody, the federal system will allow for a 15% credit for every year served by the prisoner.

The prisoner, assuming good behavior, may be allowed to spend the last six months in a halfway house. They will then be released on a supervised basis and for a term permitted by the court. At that point, the individual will ultimately be ordered to serve any custodial time ordered, with credit for any time served to date.

While on probation, should the individual violate any of their terms of probation, such as committing another criminal offense, the person will be returned to custody. There is no credit for the time the person previously spent in custody.

Locating A Criminal Defense Attorney

Should you have specific questions or require additional information about your legal rights, we strongly advise you to consult with a verified Criminal Defense Lawyer about your issues as soon as possible.