Sentencing How a Judge Imposes Sentencing & Considerations

  1. This article will assist you in understanding the basics of criminal law concerning sentencing, parole and probation. It will also cover pre-sentencing reports, suspended sentences, community service, bail, the differences between jail and prison and other topics of concern to an accused criminal defendant or convicted inmate.

    The Pre-Sentence or Probation Report

    After a defendant has been found guilty or entered a guilty plea for a crime, a pre-sentence report, also known as a probation report, will be prepared for the judge. The judge will use this report to help decide the appropriate sentence to give the defendant.

    These reports are usually done by an independent agency that is not biased towards the prosecution or the defense. The defendant’s personal information, such as employment history and other criminal records will be included in the report. Statements by victims of the crime are also included in the report, which will frequently make recommendations for what might constitute an appropriate sentence.

    Copies of the report are provided to the defendant but usually the sentencing recommendations are omitted. The defendant is given an opportunity to make any objections to this report. While the sentence recommendations are usually helpful to justices in making their final determination, a judge is not necessarily bound by these recommendations and can his or her judicial discretion within the prescribed limits of the law.

    Imposing the Sentence

    The judge imposes a sentence upon a defendant who has been convicted or who has pled guilty to a crime. There are guidelines specific guidelines set by law for particular crimes such as the amount of fines, length of imprisonment, jail time or probation. These guidelines may set the minimum and maximum amount of punishment the judge may impose on the defendant.

    Factors a Judge Considers Before Imposing Sentence

    The factors a judge will be considering when imposing a sentence upon the defendant may include the defendant's age and criminal history. A judge may also take into consideration the victim’s impact statements and the circumstances that were involved when the crime was committed. The judge may also determine if there was any remorse shown by the defendant for committing the crime. Essentially, a judge may take into account all factors that both provide satisfaction to victims that the offender has been punished as well as sufficient rehabilitative factors that would prevent the defendant from committing the crime again. The judge must also consider all federal laws and mandatory sentencing requirements in the specific crime that was committed.

    Suspended Sentences

    A judge has the capacity to impose a sentence and then immediately suspend it, which means that the sentence will not be carried out. A suspended sentence is usually given to first time offenders in the hope that this will give these first timers the incentive they need to stay out of trouble and fearful of being caught again. Another reason sentences are suspended is to deal with overpopulation of our jails when there is not enough room to house the convicted criminals of less serious crimes.

    Community Service and Probation

    Other than jail or prison sentences, community service and probation sentences are also an option that a judge may impose upon a defendant. Having a community service sentence or a probation sentence does not usually stay on one's permanent record after completion of the terms of a sentence. These types of sentences are usually imposed if a defendant plead guilty for the purposes of getting a deferred judgment, a diversion program or a deferred adjudication. Once the community service sentence or the probation sentence is successfully completed without further incident, the prior guilty plea is considered "withdrawn." It is as if the guilty plea was never made. However, according to the federal sentencing guidelines, these sentences can count as one point in your criminal history record. Pleading guilty with no conditions may result in a defendant having a permanent criminal record. If you are found guilty by a trial in court or a jury, you will have a permanent criminal record.

    Difference in Jail Sentence and Prison Sentence

    Jail sentences usually involve being incarcerated for up to one year, while a prison sentence can mean being behind bars for up to a lifetime. Jails are run by the city or county government while prisons are run by the federal or state government.


    • hold defendants for arraignment or trial date, unless freed by making bail
    • hold a defendant during the time it takes for the case to be adjudicated if the defendant is unable to make bail
    • hold convicted criminal defendants sentenced to less than a year
    • hold those accused of violating the terms of probation or parole
    • hold inmates in the custody of other jurisdictions, but in the process of being transferred


    • are the primarily place of incarceration for convicted felons
    • hold criminal defendants with a sentence of a duration of one year or greater imprisonment
    Criminal Law & Procedure:
    Sentencing - Considerations, Process

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, 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 and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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