Criminal sentencing varies throughout the states. Each state and the federal legal system (for federal crimes) have its own rules for deciding on a sentence. There is only one sentencing principle that is upheld in all 50 states. The U.S. Constitution’s Eighth Amendment prohibits excessive bail amounts, fines, and cruel and unusual punishment. The amendment is not very specific regarding the nature of “cruel and unusual,” but the Supreme Court has ruled that it means sentences that are outrageous, inhuman, or would shock the public conscience. All jurisdictions must follow this rule.
Despite the variation among the states, there are commonalities in how sentencing works throughout the U.S. One such commonality is that, following a criminal conviction, there will be a penalty. The most obvious penalty is incarceration, but it may also come in the form of probation, fines, restitution to the victim, or community service, and a variety of other options, such as drug and alcohol rehabilitation. The death penalty is also permissible in 27 states.
How, though, is a criminal sentence decided upon?
Who Can Impose a Criminal Sentence?
Judges, not juries, generally decide upon criminal sentences. Juries hear the facts of a case and render a verdict of guilty or not guilty. However, they are not given the power to decide the defendant’s fate. The one exception is in a case where the death penalty is involved. Some states require that the jury recommend the death penalty, and then the judge will impose it.
Not all judges have discretion in determining a criminal sentence. If a state has a law that describes a “determinate sentencing” system, a definite prison term, and the judge must follow it. Therefore, if a person is convicted of a crime in this jurisdiction, and the penalty for that crime is one year in prison, the convict will not be released until they have served the entire year. There is no such thing as “time off for good behavior.” Thirteen states have sentencing systems that are determinate.
The remaining states and the District of Columbia use a different sentence-determining system. It is called “indeterminate sentencing.” Indeterminate sentencing is a system in which the judge is given flexibility in deciding an individual’s sentence. The sentencing statutes do not set forth one particular sentence for a crime, but rather the sentence is given in the form of a range, with a minimum and maximum amount of time to be served.
For example, if a judge sentences the convicted individual to a term of 20 years to life, the individual would have to serve at least 20 years of a prison sentence but may not have to serve a full life sentence. The parole board can release the prisoner earlier depending on their behavior while in prison.
Are There Any Rules for Criminal Sentencing?
State statutes set up guidelines that judges are supposed to follow to fix a sentence. They can deviate from the sentencing guidelines, but they must explain why they are doing so, and it must be in writing.
Crimes are first divided into two categories: felonies and misdemeanors. Felonies are the more serious crimes; by definition, their minimum sentence length is one year in prison. Misdemeanors are smaller crimes and can be punished by up to one year, but not more. Murder is a felony; stealing a loaf of bread is a misdemeanor. Some crimes can be charged as either a felony or a misdemeanor based on the amount of stolen money or property, theft, for example.
How Do Sentencing Guidelines Work?
State and federal sentencing guidelines offer a recommended sentencing range for each crime. While these guidelines vary from state to state, they generally consider 1) the nature of the crime and 2) the defendant’s prior criminal history. These factors suggest a minimum and maximum penalty (including jail time and fine). An example would be 1-20 years for robbery or 20 years to life for murder.
There are widely available online tables that list offenses and points assigned to the defendant’s behavior. To find the correct sentence, the judge looks to see where the two sides of the table meet.
A good example of sentencing guidelines is those of the federal system. The guidelines include 43 offense levels. The higher the level, the more severe the crime is, and the longer the presumptive sentence will be.
In addition to the base offense levels, every type of offense is assigned several additional factors. These can raise or lower the base offense level and, in turn, affect the sentence. An example: A home burglary begins at level 17. It goes up based on the amount of property stolen. If the burglary led to property loss with a value of $2500 or more, an additional level is added. Five levels are added if the property loss is more than $800,000.
In addition to adding levels regarding the crime, adjustments will apply based on the defendant’s behavior. If the offender participated only to a minimal extent, e.g., they were the driver of the getaway car in a bank robbery, the offense level is decreased by four. On the other hand, If the offender knew the victim was vulnerable because of their age or mental condition, the offense level goes up by two.
The other main factor used in the guidelines is the offender’s history. The guidelines are based on the idea, common in criminal law, that repeat offenders should get longer prison sentences than people convicted of fewer prior criminal acts. In the guidelines system, points are awarded for every prior conviction.
Assigning the points for a crime is more of an art than a science. Prosecutors will argue that a given situation is worth, for example, 35 points, while the defense will argue that the correct number is 30. The judge has to hear the parties’ arguments and decide how much weight to give to them.
Can a Judge Increase or Decrease a Criminal Sentence?
Yes, as mentioned above, a judge may use a variety of factors to help them determine the sentence. These factors may lead the judge to either increase or decrease the sentence. A particular heinous crime, a defendant’s cruelty, or their history of prior criminal convictions might inspire a judge to give the maximum penalty. On the other hand, if the defendant has no previous record of criminal convictions or committed a lesser crime, the judge might be lenient.
Other factors a judge might look at in giving a heavier or lighter penalty include whether the defendant was the main offender or an accessory to a crime, the personal circumstances under which the defendant committed the crime, whether the crime was violent or resulted in injury to someone; and whether the defendant demonstrates genuine remorse for the crime they committed.
If a defendant is found guilty of more than one crime, the judge may impose more than one sentence. Hence, a convict may be forced to serve consecutive imprisonment sentences, one sentence after another, or be allowed to serve them concurrently.
Are There Any Recent Updates to the Federal Sentencing Guidelines?
Yes, there have been amendments and updates to the federal sentencing guidelines. One impactful update is an amendment that simplifies the sentencing process from a three-step approach to a two-step approach which eliminates the requirement that a judge consider departures.
Instead of departures, courts will focus instead on the individual circumstances of each case. These amendments also provide clarification about culpability for drug trafficking and addresses fentanyl-related offenses.
The amendments also included changes regarding firearms offenses that involve machine gun conversion devices. An attorney will be able to give more information about the updates as well as additional details about how they can affect a case and someone’s sentence.
There are also other proposed amendments related to simplifying multiple-count rules, post-offense rehabilitation, and methamphetamine issues. The federal sentencing guidelines, as well as other criminal laws, may be updated at any time, especially with changes in presidential administrations, so it is very important to ask for help from a local criminal attorney.
Can There Be Immigration Consequences for Criminal Sentences?
Yes, there can be significant immigration consequences when someone is sentenced for a crime. These consequences may be very serious and may even include deportation.
Deportation is considered a civil legal consequence that happens when someone is convicted of a crime. Immigration proceedings are considered to be civil in nature and not criminal. Even though deportation can be triggered when someone is convicted of a crime, it is considered a separate and distinct punishment.
Because of this difference in classification, there can be differences in the way that situations are handled. This includes not needing a Miranda warning when a detention occurs and having a lower standard of proof, which is clear and convincing evidence.
Illegal reentry following deportation is an additional and separate federal offense. If an individual illegally reenters the U.S. after they have been deported, they may face prison time as well as criminal fines.
Not all criminal convictions will result in deportation or automatic deportation, but it is important to be aware that there are some crimes that will usually result in deportation proceedings. Under immigration laws, aggravated felonies resulting in automatic deportation include:
- Child pornography
- Drug trafficking
- Murder
- A theft crime that carries a significant sentence
- Rape
- Fraud that involves a large sum of money
When a noncitizen has been convicted of an aggravated felony, they may face a permanent ban on reentry into the U.S. following their deportation. They can also be permanently banned from reentry even if they hold lawful permanent resident status.
Conviction of a crime of moral turpitude will also typically result in deportation. These offenses involve fraud, dishonesty, and are considered inherently immoral. They include theft, fraud, domestic violence, and assault with intent to commit a serious crime.
If a noncitizen is convicted of a crime of moral turpitude, they can face deportation or be deemed inadmissible to the United States. With this type of offense, however, they might be able to obtain relief if there are mitigating factors or if their conviction is old.
A drug offense will also commonly cause deportation because immigration laws are very strict on drug crimes. Drug possession, drug manufacturing, and drug trafficking convictions can all serve as grounds for deportation.
There are some types of drug convictions, such as those that involve large quantities of a drug or distribution of a drug that may result in automatic deportation. If a defendant is convicted of a less serious drug offense, however, their immigration status may not be as severely affected.
No matter the criminal charge that a person is facing or what types of criminal convictions they have, it is essential to have a consultation with a criminal attorney who also has experience with immigration cases. This type of lawyer can explain how criminal convictions can impact an individual’s immigration status, whether pleading to a lesser offense may help them avoid deportation, and whether or not there are mitigating circumstances that may help their case.
Do I Need a Lawyer If I am Facing a Criminal Sentence?
Sentencing hearings are often held after the trials that lead to criminal convictions. Whether you are facing a criminal trial or at your sentencing, you should consult with a criminal lawyer. An experienced criminal defense attorney can help you determine the sentencing guidelines for your crime and can try to assist in having your criminal sentence reduced.
Depending on the circumstances, the attorney can also try to negotiate probation or community service as an alternative to jail times. Public defenders are available for those who cannot afford private attorneys.
You can use the free lawyer-matching services provided by LegalMatch to find a criminal defense lawyer who can help you if you are facing a criminal sentence. When you use LegalMatch’s services, you will be matched with licensed and prescreened lawyers in your area who are available to assist you, whether you simply have questions about the process or you need representation in court.
Each lawyer’s response to your submission will include information about their education, background, fee arrangements, and reviews from their former clients. Some attorneys may offer free initial consultations, or first meetings, allowing you to speak with them for free for the first time. Get started today and see how LegalMatch’s free lawyer-client matching services can help you.
