Criminal Law

Criminal Sentencing: The Basics

Generally, a criminal prosecution ends when the defendant - the person convicted of committing a crime - receives his punishment. This is often called the "sentencing phase" of a criminal prosecution, and the same thing happens regardless if the defendant was convicted by jury or pleaded guilty as part of plea bargain. At this stage of the process, the defendant finds out if, for example:

  • He has to pay fine
  • He's going to jail, and for how long, or
  • He has to pay back what he took

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.

Who Decides the Sentence and When?

As a general rule, regardless of whether you're in a state or federal court, a sentencing judge decides the punishment. Juries typically don't decide the sentence. However, there's an exception when it comes to capital cases - when the death penalty is possible. In most death penalty cases, a jury must be allowed to decide if a defendant should be put to death or sentenced to life in prison. Usually, the jury must recommend imposing the death penalty.

In most criminal cases, especially those involving misdemeanors and plea agreements, sentencing takes place as soon as you're convicted. This may be the same day that a judge or jury finds you guilty or you enter a guilty plea, or it may be a day to two later. It happens quickly here because, typically, there's not much need to think about the appropriate sentence. For instance, the punishments for misdemeanors are usually pretty straight-forward: A fine, a short jail term and maybe probation for first-time offenders. As for plea deals, the prosecution usually recommends a certain sentence, and many times the sentencing judge goes along with that recommendation.

Sometimes, however, the sentencing judge must get a pre-sentencing report (PSR) before a defendant may be sentenced. This true in both federal and state courts. When a PSR is needed, it's possible that sentencing will be delayed for weeks after the conviction. In the federal system, PSRs are prepared by the US Probation and Pretrial Services System. In most state courts, PSRs are prepared by court personal or by a state or local probation office. A PSR must contain various kinds of information, such as a defendant's prior convictions, what types of sentences apply to the case and any financial or medical problems suffered by the defendant's victim.

Figuring the Actual Sentence

Once again, when it comes to deciding the actual sentence, you need to look at the state or federal law that applies to the case. Some state and federal laws say exactly what sentence a defendant must get for a specific crime. These are called mandatory sentences. For example, a law may require a judge to sentence a person convicted of his second DUI offense to 30 days in jail, regardless of whether there are facts or circumstances that normally would make a judge give a more lenient or harsher sentence.

On the other hand, many criminal laws specifically list the maximum and minimum penalty or sentence for a particular crime. In many cases, it's up to the judge decide the actual sentence. For example, a law may state that a defendant convicted of burglary should be punished by a prison term of no more than 5 years, a fine of no more than $5,000, or both. Here, it's up to the judge to decide if you'll:

  • Go to jail (and for how long), and pay a fine (and how much)
  • Go to jail, but pay no fine, or
  • Not go to jail, but pay a fine

If a PSR was written, the judge will use it to determine how hard to punish you. In a federal court, the judge will look at the US Sentencing Guidelines (USSG). Many states also follow these Guidelines, too, or at least have laws that are pretty much the same as the Guidelines. The USS lists factors that the sentencing judge will consider when determining the exact sentence within the maximum and minimum. A defendant gets "points" for factors such as prior convictions, the use of a weapon, the age if the victim and how she was hurt or what was taken from her. The higher the points, the more likely it is you'll get a harsher sentence.

Questions for Your Attorney

  • If I agree to a plea bargain, the judge can't give me a sentence that's harder than the one I agreed to in the plea agreement, right?
  • If I need to wait four weeks until sentencing, will that time come off of the sentence I eventually get? So, If I get six months in jail, I'll only have to serve five months and one week, right?
  • Do I get the chance to say something before I get sentenced?
Have a criminal law question?
Get answers from local attorneys.
It's free and easy.
Ask a Lawyer

Get Professional Help

Find a Criminal Law lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Talk to an attorney

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you