Criminal Defense Newsletter

How Sentencing Works

Sentencing is a pivotal element in the criminal process. Beginning with the decision as to what type of crime a prosecutor decides to charge a suspect with, to whether or not a defendant decides to enter into a plea bargain or whether a defendant has a right to a jury trial, sentencing affects almost every aspect of criminal case. Despite its key role, however, the sentencing process remained largely unregulated until the 1970s when the United States Sentencing Commission was created to reduce racial and socio-economic disparity in the system.

The Commission revolutionized sentencing procedure in the United States by establishing a set of sentencing guidelines for judges to follow when determining a punishment. In general, the guidelines consider two factors: the type of crime and the defendant’s criminal history. While it is unconstitutional to require judges to follow the guidelines without considering other factors, nearly every jurisdiction in the United States now uses some form of sentencing guidelines.

Determinate v. Indeterminate Sentencing

Some states have indeterminate sentencing, which means that a parole board can later review and alter a punishment. Determinate sentencing, on the other hand, means that the punishment is set at the time of sentencing and is not subject to later review by a parole board. The current trend is toward determinate sentencing, which many believe further eliminates racial and socio-economic bias in the system.

Mandatory Minimums and the Three Strikes Rule

By 1983, the Sentencing Commission reported that 49 out of 50 states had enacted mandatory minimums for certain types of crimes. As part of the war on drugs, congress enacted mandatory minimum penalties for certain drug and firearm crimes. Opponents to these mandatory penalties argue that since prosecutors decide what crime to charge a suspect with, non-whites are being charged disproportionately with crimes that result in a mandatory sentence, whereas white people are more likely to be charged with a lesser offense.

At least half of the states have enacted laws that attach a mandatory minimum sentence to repeat felony offenders. These are known as three-strikes rules, and states differ on what types of crimes qualify as a strike.

What Happens After Conviction

The vast majority of sentences are decided by plea bargain, a process in which a defendant agrees to plead guilty to a crime in exchange for a lesser sentence or less serious charges. If a case goes to trial, then sentences can be decided in a variety of different ways. If a crime is more serious — and thus carries a longer sentence — many jurisdictions require a separate sentencing proceeding where evidence is presented and the jury makes a recommendation as to the proper punishment.

In general, there are four types of sentences people receive: fines, community service, probation and confinement. Fines and community service generally apply to less serious crimes or to first-time offenders. When a convicted person is sentenced to confinement, he or she will go to prison or jail for a set amount of time if a state uses determinate sentencing. If a state uses indeterminate sentencing, then a parole board can shorten the sentence upon later review.

In many cases, especially with first time offenders, a convicted person will be put on probation. This usually means that a judge will put a sentence on hold as long as the convicted person agrees not to engage in certain behavior. If the convicted person breaks the rules of probation, the original sentence will be carried out.

The sentencing process is complex and varies greatly depending on the jurisdiction, the criminal history of the defendant, and the type of crime committed. Finding an attorney specializing in criminal law is crucial in understanding possible outcomes of a criminal conviction.

Preparing to Meet With a Criminal Defense Attorney

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Preparing to Meet With a Criminal Defense Attorney

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