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Sentencing Law FAQ

Here are answers to the most commonly asked questions about sentencing law.

In terms of sentencing law, who determines what kind of punishment a convicted defendant will receive?

Contrary to what many in the public think, it is judges, not juries, that almost always determine sentencing for a convicted criminal defendant. It is pretty common for the judge to tell the jury not to consider punishment when determining whether a criminal defendant is guilty or not guilty. Indeed, many times a mistrial is declared when it can be shown that the jury considered punishment when determining guilt.

However, there are some occasions when a jury will decide a convicted criminal's punishment. For example, in capital punishment cases (death penalty cases) in some states, judges are not permitted to impose the death penalty and it is up to a jury to decide whether a convicted criminal should be sentenced to die.

Is there any place that I can look to find out the proscribed punishment for various crimes?

There are some situations in which the criminal statute prescribes the punishment. As an example, a state may have a law on the books that defines a specific misdemeanor and goes on to say that the punishment for the misdemeanor shall be "a fine of $1,000, or imprisonment for not more than six months, or both."

There are other laws that define a crime or a misdemeanor but do not specifically define the punishment. In situations like these, the punishment will normally be found in a separate law that sets forth punishments for misdemeanors or crimes of a certain nature.

However, it is often the case that the punishments and sentences for many crimes will not be found in statutes or court rules. When this happens, you will probably have to do some digging to find out about any potential punishments. You would be well advised to take these steps:

  • Take a meeting with a private defense attorney for about half an hour. At the meeting, describe the crime that you are worried about and ask the attorney about possible punishments.
  • If you cannot afford to talk with a private attorney, talk to an attorney in the public defender's office.

Keep in mind that if you have prior convictions or criminal punishments on your record, the sentence that is put down in a book may not be the punishment you would get. Judges frequently add enhancements to sentences when the convicted has a criminal record.

Is it true that people convicted of the same, or similar, crimes receive the similar punishments?

There are some state and federal criminal laws that proscribe "mandatory sentences" or "mandatory minimum sentences." If a criminal defendant is found guilty of one of these crimes, the judge is restricted by law to impose a mandatory sentence, or a mandatory minimum sentence. The laws that set out mandatory sentences are put in place by state legislatures and the U.S. Congress.

However, there are only a few laws on the books that have mandatory sentences. In most situations, judges are allowed to take in a number of considerations when determining a sentence for a convicted criminal defendant. For example, judges are often allowed to consider a defendant's criminal history, the circumstances under which the crime was committed (did the defendant steal for the fun of it, or did he steal because he needed to put food on the table for his kids?), and whether the defendant genuinely feels remorse about his or her actions.

What factors do judges take into account when considering punishments?

If the judge is not limited by a mandatory minimum sentence, or some other law or laws that limit his or her discretion, the defense is normally allowed to bring a plethora of factors to the judge's attention. Here are some examples of factors that judges often take into consideration when determining punishment:

  • The criminal history of the defendant (for example, the defendant is a first time offender),
  • Whether the criminal defendant was the principal actor in the crime (the person that held the gun during the robbery), or if the defendant was only an accessory to the crime (the person that told the principal about an unlocked cash register).
  • The mental state that the criminal defendant was in before committing the crime (perhaps the defendant had recently lost his job and thought he had no other way of putting food on the table).
  • Whether anyone was hurt during the commission of the crime (did the criminal defendant plan the crime in a way that minimized risk to the health and safety of others).

However, these factors can be turned around by the judge as well. Just as one factor could be a "mitigating" factor (one that lessens a criminal punishment), that same factor could be an "aggravating" factor (one that increases a criminal punishment) under different circumstances.

For example, if a criminal defendant has a criminal record of committing the same types of crimes over and over, it may appear to a judge that the previous criminal punishments have not been adequate and could sway the judge to impose a harsher punishment. As another example, if a criminal defendant was particularly malicious in the commission of his crime, a harsher punishment may be in order (examples include using a weapon during a crime, or inflicting physical or mental harm on a victim).

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