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Background on Sentencing

Sentencing takes place after a defendant is convicted of a crime. 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.

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 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.

In a sentencing 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 defendant's expression of remorse.

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 defendant's background and mitigating circumstances and make a sentencing recommendation. The pre-sentence report considers, in particular, the defendant's criminal history, the nature of the crime, the defendant's personal circumstances and the defendant's level of remorse.

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 of 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 court considered 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 its probable 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 permit 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 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 should be emphasized 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.

Sentencing Definitions


Cases and Hypotheticals