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Sentencing Basics

Sentence Types

Background on Sentencing

In the common law system sentencing takes place after a defendant is convicted of a crime. In the civil law system the guilt and sentencing phase are often merged and the judge will pronounce both at the same time.

In the common law system the conviction can be the result of a trial verdict or a guilty plea. For minor offenses, sentencing typically occurs immediately after the conviction. For more serious and/or complex cases, the sentencing judge will set a date for sentencing.

In a civil law system a guilty plea will not always trigger the end of the trial phase. Instead, civil judges will continue to gather corroborating evidence in order to find the truth. Civil law practitioners are often dismayed at the common law trend of pleading guilty to a crime that you did not commit in order to shorten the criminal proceedings.

A criminal punishment is typically considered to have four justifications or goals: deterrence, incapacitation, rehabilitation, and retribution. A criminal sentence is rarely imposed with a single justification in mind. To the contrary, these justifications act in the background, informing the types and methods of punishement a society may implement.

  • Deterrence - Punishment is believed to deter criminals from undertaking further criminal activity. It also has a detterent effect on the general population.
  • Incapacitation - Incerceration removes a dangerous individual from general society, protecting the population from further crimes. This justification is often used for serious crimes such as assault, murder or rape.
  • Rehabilitation - A sentence may require a convicted defendant to undertake certain activities intended to rehabilitate the individual and facilitate their safe reentry into society.
  • Retribution - Although controversial, punishment is often justified as society's retribution against the defendant.

Sentencing: Process

Generally, the court will impose a sentence that is within a range set by statute for the crime committed. The schedule of sentences or the sentencing range is codified by the state law or statute of the jurisdiction in which the crime occurred. In the United States, we look to different schedules of sentences depending upon (1) the state where the crime was committed or (2) the federal statute for the particular crime. The federal system has advisory guidelines to assist and restrict the court in imposing the sentence. The guidelines take into account factors such as the seriousness of the crime, whether the defendant has prior convictions, whether the defendant was a "ringleader" and whether the defendant abused a position of trust. Some states also have guidelines, but most leave the sentence to the court within the range set by the particular statute.

For a crime on the state or local level, the sentencing judge will consider information from a number of sources in determining an appropriate sentence. Those sources, among others, are the defendant's criminal history, the nature of the crime, the defendant's personal circumstances, and the level of remorse expressed by the defendant.

In some jurisdictions, and in the federal system, the judge will order a pre-sentence report which is prepared by the probation department. The pre-sentence report will investigate the nature of the crime and the defendant's background and mitigating circumstances and make a sentencing recommendation.

It is important to note that the rules of evidence typically do not apply at sentencing. Many of the facts that the judge considers at sentencing are not elements of the offense and, as such, they will not have been established by the finding of the defendant's guilt. For example, in a state court case in which the defendant was convicted by a jury for possession of drug paraphernalia with intent to manufacture methamphetamine, the sentencing court admitted evidence of other drug offenses that occurred subsequent to the charged offense. The testimony during the sentencing phase by a police detective about his contact with the defendant on two separate occasions subsequent to the defendant's arrest for the present conviction was admissible at sentencing. Courts have also held that hearsay testimony, which otherwise would have been inadmissible at trial, may be considered at sentencing; however, the information must have sufficient indicia of reliability to support a high probability of accuracy.

The judge will also consider input from the prosecution and defense in determining the sentence. The court will afford defense counsel the opportunity to comment on the probation office's recommendations contained in the pre-sentence report and, at times, to present testimony and evidence on any objections to the same. The court is also required to give defense counsel the opportunity to speak on the defendant's behalf and the court must address the defendant personally to determine whether the individual desires to make a statement or present any evidence in mitigation.

To counter any "aggravating factors" raised by the prosecution, it is advisable for the defense to submit, at a minimum, a sentencing memorandum which sets forth various mitigating circumstances in an attempt to reduce the severity of the defendant's sentence. For example, the defense may want to provide in its memorandum:

  • A detailed personal history of the defendant in an effort to "humanize" the defendant which may include, among other things, a possible history of child abuse, positive personal successes, volunteer work, and/or church service
  • Possible alternatives to incarceration such as community-based probation, house arrest and/or placement in a half-way house
  • Specific community service that may be related to the offense such as speaking to students about the negative impact of drug abuse or criminal activity
  • Drug and/or alcohol treatment including placement in a specific facility coupled with outpatient therapy
  • Psychiatric and/or psychological counseling with placement in a specific hospital or work with a specific psychiatrist/psychologist
  • Victim restitution with a statement of remorse for the offense committed
  • Specific employment options coupled with a detailed work history
  • Letters of support and recommendations from community members which attest to the defendant's positive character and reputation in the community and the community member's willingness to assist in the defendant's rehabilitation
  • Any challenges to incorrect information contained in the pre-sentence report
  • A detailed sentencing proposal which may include credit for time served

While the above examples are not exhaustive of what defense counsel may or should present in a sentencing memorandum, it is important to emphasize that defense counsel should strive to be as creative as possible in advocating for a lesser sentence. The goal of defense counsel should be to provide the court with any and all positive information about the defendant that would assist the court in its sentencing determination.

Sentencing Basics

At sentencing, the defendant's sentence may include one or a combination of the following: incarceration, fines, probation, restitution, community service drug and alcohol treatment, and psychiatric/psychological counseling. A defendant may also receive a "suspended sentence" in which a period of incarceration is suspended for a period of probation.

Cases and Hypotheticals

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