In many criminal cases, when it's time to punish or sentence someone convicted of committing a crime (he's called the "defendant"), the sentencing judge looks at many things when trying to figure out what sentence to give him. For instance, the judge may look at:
- A "presentence report" (PSR)
- The defendant's criminal history, including any prior convictions, and
- Mitigating and aggravating factors
Sometimes, though, the judge doesn't have to, and in fact isn't allowed to, look at or consider anything when it comes to sentencing. The types of evidence the judge will look at depends a lot on whether state or federal laws apply. Be sure to check the laws that apply to your case to see what, if anything, a judge may look at when figuring your sentence.
Some state and federal laws have mandatory sentences. That means the sentencing judge has to give you the exact sentence stated in the law. These laws ensure that everyone gets the same sentence, every time. The judge can't consider any facts or circumstances of your case that might change the sentence. For instance, a state's DUI law may mandate a 3-day jail sentence and license suspension for a first time offense. No exceptions.
However, many sentencing laws don't contain mandatory sentences. Rather, they list the maximum and minimum sentence for a crime. Here, the judge has "discretion" to set your sentence somewhere between the maximum and minimum. For example, if a law states that a burglary conviction requires a prison term of up to 5 years, it's up to the judge decide how long you'll spend in jail. Here, he'll look at a variety of things to decide the sentence. This may include things like how much harm was done, whether a weapon was used, how much you participated in the crime and aggravating or mitigating circumstances.
In federal courts, and in many state courts, a presentence report (PSR) must be prepared before a defendant may be sentenced. This is true unless a specific law states that no PSR is needed or the judge explains that the record of the case has enough information to enable her to fix the defendant's sentence. The US Probation and Pretrial Services System writes these reports in federal cases. In most state courts, they're written by court personnel or by a state or local probation office.
A federal rule (and the rules in many states) lists the types of information that must be in a PSR. This includes:
- The defendant's "offense level," which is indicates how serious the crime is, and his "criminal-history category," which is based upon his past crimes and misconduct and how long ago all of crimes happened
- Any information about the defendant's history and characteristics, including any prior criminal record, his financial condition and anything that affects his behavior that may be helpful in imposing sentence or in correctional treatment, such as any mental illness or learning disability. This information may come from the defendant, his family members, employer or anyone else with a close business or personal relationship with him
- A victim impact statement. This is a report on any financial, social, psychological and medical impact on any victim. Also, the victim has the right to address the court during sentencing, which often has an influence on the judge when he determines the sentence
- If criminal law allows the judge to order restitution - make the defendant repay what he took or pay the victim's medical bills, for example - the PSR must have details so the judge can figure the amount. This may include his W-2 forms, his employment status, proof of loss to victims, insurance claim forms and medical records.
Aggravating and Mitigating Factors
These are facts and circumstances about the case that may convince the judge to give you a more severe sentence (called "aggravating" factors or circumstances), or give you a more lenient sentence ("mitigating" factors). These things are usually in a PSR, but if no PSR was written, the prosecution or the defense can bring them up during sentencing.
Aggravating factors include things like:
- Recidivism, which means you've committed the same or similar crime more than once
- Prior felony convictions
- The defendant was the "leader" or "organizer" of the crime and enlisted the help of others
- The victim was treated cruelly
- The crime involved a child or was committed in the presence of a child
- A weapon was used during the crime
Mitigating factors include:
- The defendant has no prior criminal history, or has a very limited criminal history
- The defendant wasn't the leader or organizer of the crime, but rather helped the leader commit the crime
- The defendant expresses his remorse for committing the crime and apologizes
- There were emotional or physical factors involved in the defendant's behavior, such as mental illness or alcohol or drug addiction
- It was a non-violent crime, and there was little or no threat that the defendant could hurt himself or others
- The defendant cooperated with law enforcement officers in the investigation of the crime and the apprehension of others involved in the crime
Aggravating and mitigating factors are different from state to state, and between the states and the federal system. Again, it's important that you look at the law that applies to your case to see if mitigating or aggravating factors may apply to your sentence.
Questions for Your Attorney
- I was arrested once before but wasn't convicted. Will that arrest count as an aggravating factor when I'm sentenced on my current conviction?
- If I had a conviction expunged or "removed" from my record, will it still show up in a PSR?
- I was ordered to pay more restitution than my co-defendant. Shouldn't we each have to pay one-half?