Criminal Procedure How Criminal Sentencing is Determined

Who determines the punishment after a criminal defendant is convicted of a crime? How can a defendant be sure of receiving fair treatment and not being punished more harshly than other defendants? Is there some flexibility and leniency allowed in the sentencing process? It is important to know the answers to these questions before the sentencing process begins.

Who determines the punishment for a criminal conviction?

In almost all circumstances a judge and not a jury decides the punishment for a criminal defendant. Some exceptions occur such as in capital punishment cases, which occur in some states. A jury will decide whether or not a defendant convicted of intentional murder may receive the death penalty instead of life imprisonment. Juries are also regularly reminded in court not to use the potential punishment as a factor in deciding the innocence or guilt of a defendant.

Judges may be allowed to or prevented from imposing certain punishments unless a jury can conclude that a certain event occurred. For example, the law may permit a judge to impose a harsher sentence when a jury finds that a gun or other weapon has been used in the commission of a crime. In such a case where an aggravating factor is present, a jury must conclude beyond reasonable doubt that a gun was used in the commission of the crime.

Where are the punishments for criminal offenses listed?

Punishments for crimes are codified in a penal code or statute. For example, DUI / DWI convictions in New York State can be found in Alcohol, Vehicle and Traffic Law Section 1192.1, which states that a first DWI offense is a misdemeanor and the second may be a felony. Sometimes punishments are listed near or in the same section as the elements that constitute a crime. Other times the criminal code may list a type of charge, such as a class of misdemeanor or felony, and the punishments for those types of crimes are listed elsewhere. For example, Grand Larceny in the Second Degree is a Class C felony in New York and punishable by up to 15 years in prison.

Is sentencing the same for people convicted of similar crimes?

Penal statutes may contain "mandatory sentences" – punishments specified by the law which are to be applied identically to all defendants who are convicted of the same offense. The argument for mandatory sentencing is to prevent judicial leniency and the perception of bias, such as certain people or groups receiving favorable treatment.
It is more common for the penal code to contain options or ranges for a judge to follow and provide for judicial discretion and flexibility in sentencing. A judge can use different factors in deciding an appropriate punishment, such as one based upon the defendant's age and criminal record. In order to get a better idea as to customary sentences issued for a crime, it may be necessary to spend some time speaking to a criminal attorney. You might also wish to speak to a lawyer in the public defender's office and have the benefit of their experience in the judge's courtroom.

What factors are used for criminal sentencing?

In making the punishment fit a crime, a judge can frequently use the facts and circumstances of a case that justify imposing a harsher or lighter sentence. These are called "aggravating factors" and "mitigating factors." Some of common examples of factors include:
  • The criminal history of the defendant;
  • The defendant's age and sophistication;
  • The nature of the crime - a violent or non-violent offense (such as robbery versus petty theft);
  • Whether there was potential for the injury of victims in the commission of a crime;
  • Whether the defendant was the main actor or an accessory (a secondary helper) to the crime;
  • The circumstances surrounding the commission of the crime (such as a defendant stealing money for food and shelter after losing a job);
  • The defendant's mental state (such as being clear of mind, drunk or under the effects of prescribed medication);
  • Whether aggravating factors are present (use of a deadly weapon, repeat offender.)

What is alternative sentencing? When is it available?

In certain circumstances, a prosecutor may request and a judge may have the authority to impose an alternative sentence, a more lenient punishment where the defendant avoids serving jail or prison time. Alternative sentences are usually available when there are mitigating factors in the commission of a crime such as a first offense, no criminal history and a minor offense. The law recognizes that there are times when it is more beneficial for both society and the rehabilitation process to impose a requirement on a defendant other than imprisonment. Government can avoid the expense of having a defendant put into county jail for a minor marijuana charge and better served with the imposition of a fine and community service. As with most sentencing issues, a good criminal attorney will be the best person to set your expectations and identify when alternative sentencing may be available.
Criminal Law & Procedure
Sentencing - Considerations, Process
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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