Factors Considered in Determining Sentences

The Eighth Amendment to the U.S. Constitution, which extends to the states by the Fourteenth Amendment, provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Title 18 of the United States Code also governs sentencing in federal courts. Similarly, state laws and constitutions govern state court sentencing procedures.

Read on for more information about the different factors considered in determining sentences.

Aggravating and Mitigating Circumstances

Criminal law statutes enumerate crimes. The provision that identifies the specific crime will also determine the appropriate punishment. For example, a statute may read, "Violation of this statute constitutes a misdemeanor, punishable by a fine not to exceed $500 or imprisonment not to exceed 30 days, or both." Punishments will vary based on whether an offender committed a serious offense, a misdemeanor, etc.

Before sentencing, a judge will consider certain "aggravating" or "mitigating" factors. These factors help determine where a punishment should fall along the prescribed spectrum.

Aggravating circumstances are factors that increase the severity of a criminal act, while mitigating circumstances lessen the degree of criminal culpability.

Typical aggravating factors considered by judges include:

• Heinousness of the crime
• Whether it was a violent offense
• The seriousness of the offense
• Lack of remorse
• Prior conviction in criminal history
• Whether the defendant has committed similar crimes over a period of time

In Cunningham v. California, the Supreme Court held that a jury may only use aggravating circumstances to impose a more severe sentence when the jury found those factors true beyond a reasonable doubt. Also, prior convictions need not be proven beyond a reasonable doubt.

Common mitigating circumstances considered by judges include:

• Whether the defendant is an accomplice
• Whether the defendant is a minor at the time of the offense
• Whether another individual induced the defendant to commit the crime

Eighteen states consider victim wrongdoing as a mitigating factor. Victim wrongdoing is when the victim consented to the criminal conduct, caused the crime, etc.

Additionally, a presentence report by a probation officer is often considered when coming up with a sentencing range.

Defendant's Own Words

Under the Federal Rules of Criminal Procedure, before imposing a sentence, the court must allow the defendant's lawyer to speak on behalf of the defendant. The court will address the defendant and ask them if they wish to make a statement on their behalf. They will also ask the defendant to present any information in mitigating punishment. The prosecutor will also have an opportunity to speak to the court.

Most state procedural statutes and rules contain similar provisions. In many state courts, a victim or a victim's survivors may also be able to address the court. They may recommend leniency or strictness for the sentence.

Other Factors

Other significant factors considered in determining sentences include:

• Deterrence: The judge will usually select a sentence that will deter the defendant and any other future defendants from engaging in future criminal activity.
• Mandatory and Maximum Sentences: Some crimes carry mandatory minimum sentences. For example, the average punishment for drug offenders subject to a mandatory minimum penalty is approximately 125 months. Other crimes carry maximum sentences. The United States Sentencing Commission states that many federal criminal statutes authorize a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking.
• "Three Strikes" Laws: "Three Strikes" laws can affect sentencing. A convicted felon may be sentenced to mandatory life in prison.
• Plea Bargaining: Sentence bargaining, a type of plea bargain, involves a guilty plea from an offender in exchange for a lower sentence.
• Hate Crimes: Laws in some jurisdictions increase the sentence for crimes motivated by identified factors. These factors include race, gender, or sexual orientation.

Additional Resources

For more information related to criminal sentencing, click on the links below:

• Mandatory Sentences, Uniformity, and Consistency

• Deferred Adjudication/Pretrial Diversion

• Selected State Sentencing Laws

• Court Ordered Community Service

Questions About the Factors Considered in Determining Sentences? Contact a Defense Attorney Today

Only the judge can determine your sentence. Judges listen to the jury's recommendation but do not have to follow it.

There are many factors that a sentencing judge can take into account when deciding the appropriate sentence for you. Speak to a local criminal defense attorney to learn more about your state's sentencing decisions. They will be happy to discuss your prior criminal history and criminal case.