What Types of Crimes Require Jail Time?

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 What Is Criminal Sentencing?

The first part of a criminal trial is determining whether the defendant did it. If someone is convicted, the next stage is determining an appropriate legal punishment – the sentence. This is known as the criminal sentencing phase and is separate from the part of the trial that determines guilt or innocence.

Since there are many levels of crimes, from minor infractions to aggravated felonies, there are also many different levels of possible criminal sentences. Most states follow sentencing guidelines that have been created for the purpose. Sentencing guidelines offer a recommended range of sentencing for each crime.

While these guidelines vary from state to state, they generally consider the following:

  1. Nature of the crime
  2. The defendant’s prior criminal history.

These factors suggest a minimum and maximum penalty (including jail time and fine). The federal criminal procedures include federal sentencing guidelines as well.

Potential sentences include the following:

  • Probation
  • Home confinement, with an ankle bracelet that detects when you leave the house
  • Community service
  • Fines
  • Making restitution (paying victims back for whatever was damaged or stolen)
  • Participation in an anger management therapy program
  • Participation in substance abuse disorder treatment
  • Prison time
  • Capital punishment (in some states)
  • Participation in a so-called “diversionary program.”

Diversionary programs are designed to do as much as possible to ensure that the defendant doesn’t re-offend. For example, if a driver gets a third DUI or DWI, they are guilty of a crime that can be treated as a gross misdemeanor (with a jail sentence of less than a year) or as a felony (which could result in several years in prison). In a diversionary program, the defendant would appear in court once a week for a certain number of weeks, then appear every other week for a while, then once a month, and then graduate from the program.

They will undergo frequent and random urine tests, and if they fail, they essentially go back to the beginning and lose all or part of their progress. The benefit to the defendant is that no jail or prison time will be required (unless the defendant completely fails out of the diversionary program).

A combination of punishments can also be ordered.

How are Sentences Determined? Misdemeanors vs. Felonies?


At the beginning of a defendant’s criminal process the prosecutor will decide what crimes to charge. Each crime will either be a misdemeanor or a felony. It is the state legislature that decides which crimes are misdemeanors, which are felonies, and which can be charged either way depending on the facts of the particular case.

Misdemeanors are smaller, less violent crimes. Misdemeanors are crimes that can only be punished with a limited fine (e.g., a maximum of $5000, depending upon the state) and with less than a year in jail. Common misdemeanors include:

Some crimes classified as misdemeanors include penalties beyond jail time and a fine. For example, a defendant convicted of a DUI will usually have their driver’s license automatically suspended. A domestic violence conviction could mean losing the right to own a firearm. Being found guilty of indecent exposure might lead to a defendant being included in a sex offender registry.


If misdemeanors can only be punished with less than a year in jail, then felonies are the rest – crimes that can be punished with a year or more. Note that the ultimate sentence does not determine whether the defendant committed a misdemeanor or a felony. The question isn’t what sentence was imposed but what sentence could have been imposed. If one possibility is more than a year of incarceration, it’s a felony.

A felony is the most serious crime a person can commit. Felonies are punishable by no less than a year in prison but could be as long as a life sentence or even the death penalty. Note: felons are sentenced not to jails (county lockups) but to prison (state facilities).

Common felonies include:

  • Murder
  • Manslaughter
  • Larceny
  • Burglary
  • Robbery
  • Rape

Sometimes, crimes can be categorized as either a misdemeanor or a felony, depending on the criminal act’s severity. For instance, any crime that would otherwise be a misdemeanor (e.g., a driving violation) that results in serious injury to another would most likely be tried as a felony. As you can see from the lists above, larceny is categorized under both misdemeanor and felony. The prosecutor will charge the defendant’s crime as a misdemeanor or as a felony, depending on the value of the items stolen.

For example, Emily sees a sweater she likes while shopping at the mall. She doesn’t have enough money to pay for it, so she makes a spontaneous decision to steal it and gets caught. The sweater cost $300. This is likely a misdemeanor – the amount is small, and she didn’t set out to steal.

On the other hand, Mark planned to go to an electronics store, steal a laptop computer, and hide it in a bag he had brought. This will probably be charged as a felony. First, the value of the laptop is higher – $2000 (typically, thefts of more than $1000 are felonies). Second, his advance planning clarifies that this wasn’t accidental or spontaneous, and he is more likely to re-offend than Emily.

What Is the Difference Between Jail and Prison?

Jail and prison are words that are often used interchangeably, but they are not the same. The difference comes down to the time spent in each location. Jails are smaller local holding areas, usually under the control of the city or county. The time spent in jail is short, less than a year. It is typical for a person to be in jail only while waiting for their trial or sentencing.

Prisons, on the other hand, fall under the power of the state or federal government. Prisoners serve longer sentences than those in jail, from as little as a year to a life sentence.

When a person is convicted of breaking state law, they are sent to state prison, where they were on trial. When someone is found guilty of breaking federal law, they can be sent to any federal prison in any state of the union.

Is Determining Time to Serve Different For State and Federal Sentencing?

It is important to note: different court systems punish differently. One major difference is between federal courts and state courts.

Each state can generally decide what sentencing regulations and limitations to follow because each state can create its own laws. All federal courts must follow the same guidelines, no matter in which state the federal courthouse is located. In fact, Congress passed the Sentencing Reform Act and created the United States Sentencing Commission to ensure that judges are fairly sentencing individuals to reflect the crime committed.

Of course, federal judges still have discretion in sentencing, but Congress enacted a system that assigns minimum and maximum sentences to each type of crime (i.e., sentencing guidelines).

Do I Need a Lawyer For Help With Criminal Sentencing?

If you are concerned with sentencing laws in your area, you should contact a local criminal attorney. Your attorney can then explain how criminal sentencing works and provide you with legal advice and guidance and can represent you in your specific case.

Your lawyer will be familiar with the judges near you and may be able to give an estimate of how much time you will have to serve if you are convicted of a crime. Most importantly, your lawyer

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