Sentencing Basics

After a defendant is convicted or pleads guilty, a judge will decide on the appropriate punishment (or sentence) during the sentencing phase of a criminal case. Sentencing for criminal offenses can range from probation and community service to prison and even the death penalty. The following resources cover the various factors that influence sentencing, “three strikes” sentencing laws, mandatory minimum sentences, state-specific guidelines and more.

Sentencing usually takes place almost immediately after convictions for minor infractions and misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a “pre-sentence report”).

Determining Factors in Sentencing

A judge will consider several factors in determining a criminal sentence, including:

  • Whether the offender has any criminal history;
  • Whether the offender was the main offender or an accessory (someone who assists the main offender) or;
  • Whether the offender was under great personal stress or duress when he or she committed the crime;
  • Whether anyone was injured or the crime was particularly likely to result in injury;
  • Whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc.; and
  • Whether the offender displayed remorse or regret.

Choice of Sentences

Judges in most cases have a great deal of discretion when determining a sentence and have several sentencing alternatives from which to choose, from diversion to incarceration. Not every conviction means a trip to prison and alternative sentences can include:

  • Suspended sentences;
  • Fines or restitution;
  • Community service;
  • Deferred adjudication or pretrial diversion; and
  • Probation.

Additionally, there are many different types of sentences. Multiple sentences can be served concurrently (at the same time) or consecutively (one after another), and single sentences could be deferred or suspended based on certain conditions.

Sentencing In-Depth

While judges do have many sentencing options, in some cases there are federal and state laws that provide for mandatory sentences. These laws require judges to impose identical sentences on all persons convicted of the same offense. Mandatory sentences reflect the efforts of state legislatures and Congress to address public concerns regarding judges’ leniency or inconsistency in criminal sentencing.

The most notable mandatory sentencing laws are the “Three Strikes” statutes, which provide for life in prison if a convicted felon has been convicted of a “serious violent felony” and has two or more previous convictions, one of which is another serious violent felony. While these laws have been criticized for being disproportionately harsh, most have been upheld as constitutional.

Each state has their own state sentencing guidelines, which cover mandatory minimum sentences and the use of parole and probation issues.

Types of Sentences

The sentence you may get depends upon the seriousness of the crime. Possible sentences include:

  • Paying a fine. This is the usual punishment for less-serious crimes (called “misdemeanors” or “infractions”), such as traffic tickets and theft of small amounts of money or goods, like shoplifting. You may, however, have to pay a fine and go to jail, in some cases
  • Jail or prison time. This is usually the sentence for committing a felony under state or federal law, like armed robbery
  • Restitution. This means paying back what you took from the crime victim, or pay for the victim’s hospital and medical bills
  • Probation is when you’re not sent to jail or prison so long as you “play by the rules.” Those rules (called “terms of probation”) usually require that you don’t commit any more crimes, get and keep a job and make weekly visits to a probation officer. If you break one of the rules, the sentencing judge can impose the original sentence and send you to jail. Parole is similar. Here, you’re released from jail early, provided that you follow your conditions of parole – again, like not committing another crime. If you do, you may be sent back to jail to finish your sentence
  • Alternative sentences. These include things like community service – where you have to pick-up trash along a highway, for example – house arrest, or the completion of drug and alcohol abuse program. These sentences are usually given to people who committed a misdemeanor or are first-time offenders
  • Death. This is the ultimate punishment, and it’s reserved for the most serious crimes, like murder

These sentences may or may not apply in your case. For the most part, it depends on if you were convicted in state or federal court. For example, not all states have the death penalty, but it’s a possible sentence for some federal crimes. Likewise, probation may not available in your state if you’re a repeat offender.

Check the state or federal laws that apply to your case, or talk to your attorney, to see what types of sentences you could get.

How Long Does It Take?

The sentencing portion of a criminal case often takes only moments, especially if the judge is rubber-stamping the sentence agreed to in plea negotiations.

For example, the judge may sentence a defendant to “a fine of $250, ten days in jail suspended, and one year probation” while the echoes of the defendant’s guilty plea still reverberate in the courtroom. Even felony cases can wrap up quickly when sentences are negotiated as part of a plea bargain.

For example, in a felony drug possession case involving California’s three strikes law, a defendant who pleaded guilty was sentenced to seven years in prison in a hearing that lasted six minutes.

However, sentencing is not always so brief an affair, especially when the judge has legal authority to order a long period of imprisonment. Typically, the probation department will have prepared a pre-sentence report, and the defense and prosecution will have a chance to argue against or in favor of the probation officer’s recommendations and the factual findings on which those recommendations are based.

Input from the Prosecutor, Defense Counsel, and Defendant

When deciding what sentence to impose, judges typically consider oral statements made in open court as well as the probation officer’s written presentence report.

The people who most commonly speak at a sentencing hearing are the prosecutors, the defense attorney, the victims, and the defendant.

Rule 32 (i)(4)(A) of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed.


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