Criminal sentencing varies throughout the states in the U.S. Each state is its own “jurisdiction,” and makes it own laws on an issue, unless they are preempted from doing so by federal law, which always trumps state law.

Regardless, there are commonalities in the way sentencing works throughout the U.S., and in jurisdictions or cases where federal law applies (federal crimes are prosecuted in federal courts).

One such commonality is that, following a criminal conviction, there will be a penalty. The most obvious penalty is jail time, but it may also come in the form of probation, fines, and community service. The death penalty is also permissible in some states.

How, though, is a criminal sentence generally decided upon? This is explored below.

Who Can Impose a Criminal Sentence?

Criminal sentences are generally decided upon by judges, not juries. Juries hear a case and render a verdict of guilty or not guilty. However, they are not qualified to determine the sentencing for the individual convicted.

This is because there are sentencing guidelines in many jurisdictions which determine the length of the sentence to be given for a specific crime, and which are meant to be decided upon by a judge. The sentencing guidelines often give the judge a range of years within which they may sentence the convict.

Or, the guidelines may allow for probation only. The judge uses their discretion, and what they know about the convicted individual’s record, among other details, to reach a sentencing determination.

One exception to the judge being the decision maker regarding sentencing is in a case where the death penalty is involved. Some states require that the jury recommend the death penalty in order for the judge to impose it.

Are There Any Rules for Criminal Sentencing?

Yes, as mentioned above, many jurisdictions have sentencing guidelines which are used in determining sentences for those convicted of crimes. In other cases, a jurisdiction may write the sentence for a particular criminal action into the statue making that action a crime.

However, in the states that have sentencing guidelines, and for crimes at the federal level (which has its own guidelines), the guidelines usually prescribe mandatory minimum and maximum sentences and fines based on the type of crime committed. In this system of classification, a crime may fall into varying levels of misdemeanor (lesser crimes) or felony (more serious) crimes, depending upon its seriousness.

Sometimes these guidelines are optional, however, judges tend to follow them closely. There is one  sentencing requirement that judges must obey, which is the eighth amendment of the Federal Constitution.

The Eighth Amendment precludes excessive bail amounts, excessive fines or 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 is meant to mean sentences which are outrageous, inhuman and/or would shock the public conscience. All jurisdictions must follow this rule.

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 particularly heinous crime, or a defendant’s particular 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 use leniency in determining that individual’s sentence.

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 else, and whether the defendant demonstrates genuine remorse for the crime they committed. Sentences can also be reduced, or mitigated, if new factors in the case change the outcome of the case.

If a defendant is found guilty of more than one crime, then the judge may impose more than one sentence. Hence, a convict may be forced to serve consecutive imprisonment sentences, one sentence after another.

It’s also important to note that, although a sentence is for a designated number of years, a defendant may still come up for parole before that time period expires.

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 your sentencing, you should consult with a criminal lawyer. An experienced criminal defense attorney can help you determine the sentencing guidelines for your crime, if convicted, and can try to assist in having your criminal sentence reduced.

The attorney can also try to negotiate probation or community service as an alternative to jail time, depending on the circumstances. Public defenders are available for those who cannot afford attorneys.