How judges decide what a convicted criminal defendant's punishment will be.
Who determines what punishment a convicted defendant receives?
Where can the prescribed punishment for crimes be found?
Do people convicted of the same or similar crimes receive similar sentences?
What factors do judges use in determining sentences?
Can my attorney ask for an alternative sentence?
Who determines what punishment a convicted defendant receives? Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.
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Where can the prescribed punishment for crimes be found? Sometimes the law a defendant is charged with violating identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, "For a first-time offense, 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 might describe particular behavior as a misdemeanor or felony without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor (or felony), or, in some states, for all misdemeanors.
Often, however, sentences aren't listed in statutes or court rules. If you want to find out what your punishment is likely to be if you're convicted, you might take the following steps:
Do people convicted of the same or similar crimes receive similar sentences? Some state include "mandatory sentences," which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures to their perception of the public's desire to end judicial leniency and treat alike all people who break the same law. Federal law used to prescribe mandatory sentences; these are now used more like guidelines.
More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant's past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse. In short, mandatory sentence laws "fit the punishment to the crime," whereas judges prefer to "fit the punishment to the offender."
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What factors do judges use in determining sentences? If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):
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Can my attorney ask for an alternative sentence? Yes, lesser sentences can include suspended sentences, probation, restitution (victim compensation), and community service. Diversion programs, available to some defendants charged with misdemeanors involving drugs or alcohol, also may be available.
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