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Sentencing Options - Module 1 of 5

Module 1:  Sentencing Options


            Criminal laws and procedures exist to provide a defined set of rules to help ensure an orderly and safe society.  These rules authorize the government to impose punishment upon those who break them. This government-sanctioned punishment is called a sentence. Sentencing has multiple aims, including to deter law-breaking, to protect the public, and to offer treatment and training to offenders.[1]   Once a defendant is found guilty of committing a crime, it is most often the judge who, within parameters set by the law, decides and imposes a sentence.

Verdict Sentencing

            Following a criminal trial, a defendant can be sentenced for any offenses for which he has been found guilty.  This most often occurs at a sentencing hearing, which is held at a later date.  However, for low-level criminal offenses, sentencing sometimes occurs on the same day as the trial, immediately following the verdict. 

 Most states give the authority to decide a defendant’s sentence to the judge assigned to the case. Historically, many states did allow juries to determine sentences, but that changed significantly, beginning in the 1960s.[2]  In the few states in which jury sentencing remains, the judge generally still has the power to clarify or alter a jury’s sentencing recommendations. 

           Following a guilty verdict, the judge must consider many factors before imposing a sentence.  These factors will be addressed in detail in Module 2.  However, there is no requirement in most cases that judges explicitly state their reasons for choosing one sentencing outcome over another.[3]  A sentencing judge has very broad authority in deciding how to sentence each defendant, known as judicial discretion.  The judge is limited only by the statutes that prescribe the penalties available for each type of criminal offense and by the United States and state Constitutions.

           The Eighth Amendment to the U.S. Constitution prohibits all jurisdictions in the United States from assessing excessive fines or cruel and unusual punishment.[4]  A sentence is deemed to violate these prohibitions only if it is “grossly disproportional to the gravity of the defendant’s offense.”[5]  For example, in several 19th century Supreme Court cases, various forms of torture were ruled unconstitutionally cruel and unusual.[6]  More recent Eighth Amendment attacks on sentences have usually been unsuccessful.  Still, two cases in which the Supreme Court has found cruel and unusual punishment involved the application of the death penalty to defendants who committed their offenses while still juveniles,[7] and the application of the death penalty to mentally disabled defendants.[8]

           While most verdict sentencing decisions are made by the presiding judge, in cases involving the death penalty, or capital cases, it is always the jury who must decide whether to impose capital punishment.[9]  As of 2019, capital punishment remains legal in a little more than half of U.S. states and under the federal justice system.[10]  Other than Alabama,[11] all jurisdictions require unanimous agreement by jurors to impose the death penalty.

Plea Sentencing

            Defendants who plead guilty or no contest are sentenced as well, but the procedure varies depending on whether a negotiated agreement has been reached with the prosecutor.

            One option for defendants willing to accept responsibility and avoid going to trial is to enter a plea of guilty or no contest (allowed only in some cases and in some jurisdictions) directly to the presiding judge.  The judge then proceeds to a sentencing hearing in the same manner that would occur after a jury verdict. This type of plea to the court is less common than plea agreements negotiated with prosecutors.  Because of judicial discretion, a defendant who enters a plea directly to the court may be subject to a wide range of potential sentences and faces a great deal of uncertainty with regard to what sentence the judge might impose.

      In contrast, in a negotiated plea, a defendant is made aware of what sentence is likely, prior to agreeing to enter a guilty plea.  A negotiated plea involves negotiations between a prosecutor and the defendant or the defendant’s attorney.  If agreement can be reached, it can either set forth the specific sentence the prosecutor and defendant agree to or may simply stipulate that the judge shall not impose more than a specified maximum period of incarceration.  In a negotiated plea, a prosecutor can even drop or reduce certain charges.   For example, a prosecutor may agree to reduce felony shoplifting to misdemeanor shoplifting for first-time offenders, so that the stigma of being a convicted felon will not follow the defendant for life. 

The main reason negotiated pleas are common is that they provide defendants with notice of what sentence they will likely receive.  Negotiated pleas also prevent the criminal justice system from becoming overwhelmed with lengthy trials.  There are neither sufficient numbers of prosecutors nor sufficient courtrooms available to provide timely trials to all criminal defendants.  In fact, over ninety percent of criminal cases result in negotiated pleas.[12] 

              In most cases, the presiding judge will accept a negotiated plea agreement.  A judge does, however, have the power to refuse to follow a plea agreement if it is inappropriate.  If a judge does refuse to accept a negotiated plea agreement, the defendant may then choose to withdraw the guilty plea, and instead proceed to trial. 

While negotiated pleas benefit both defendants and prosecutors, some legal analysts contend that they might lead innocent defendants to plead guilty to avoid the risks of a trial.[13] The criminal justice process itself can be confusing and intimidating, and many defendants’ decisions to take plea agreements are less than fully informed. Negotiated pleas have also been criticized because defendants who enter pleas of guilty are often rewarded with reduced sentences, which effectively penalizes those who instead choose to take their cases to trial. This is particularly problematic because a defendant’s right to a trial is firmly rooted in the Constitution.[14]

Sentence Types

            Judges have a wide range of choices when sentencing defendants, ranging from pre-trial diversion programs to long-term imprisonment.  Within statutory parameters that specify the range of options available for each criminal offense, judges aim to impose sentences suited to each defendant’s circumstances. One benefit of judicial discretion is that it avoids a one-size-fits-all approach to offenders, which considers the reality that criminal offenders come from a wide variety of backgrounds and circumstances.

              Pre-trial diversion refers to any program through which a defendant agrees to complete specified activities or accept certain sanctions in exchange for the prosecution dropping charges following the successful completion of the activities or abiding by the sanctions. Pre-trial diversion is most often made available to first-time offenders of less serious offenses.  For example, someone with no criminal history who is convicted of misdemeanor vandalism may be required to make restitution for the vandalism and complete some community service. On completion of these terms, the case will be dismissed.  This requires some measure of accountability while allowing first-time offenders to avoid the social stigma of having a criminal conviction, which can sometimes interfere with obtaining employment. The criminal justice system seeks to prevent recurrence of criminal behavior, not necessarily to make living a lawful and productive life more difficult, particularly for first-time offenders.[15]

 Fines are another sentencing option that have been used for centuries to punish defendants.  The rationale is that imposing a financial burden on offenders will both punish them and serve as a deterrent.  However, fines can be difficult to implement in a way that achieves this goal.  The amounts of fines imposed for different types of offenses tend to stay relatively stable regardless of the offender’s financial means.  Thus, poor defendants may simply be unable to pay their fines, while the same fine may be an insignificant deterrent for wealthy defendants.  Further, when courts try to enforce punishments for defendants’ failures to pay fines, they can run into constitutional barriers.  The Supreme Court has ruled that a defendant who does not pay a fine that he truly is unable to afford cannot be incarcerated as punishment, because this would amount to punishment due to financial status.[16]  The Supreme Court has ruled such incarceration fundamentally unfair and therefore violative of the Constitution’s guarantee of due process of law.

 Probation is the form of sentencing most frequently imposed by judges.  Probation requires defendants to abide by certain specified conditions, and if they fail to do so, they risk having their probation revoked and having it replaced with incarceration. Probation can be supervised or unsupervised.[17]  Unsupervised probation is generally reserved for otherwise responsible defendants who are likely to be able to complete their conditions without assistance, and who will submit proof of completion to the judge within the required time period.  Supervised probation, which is more common, provides the defendant with a supervisor, known as a probation officer, who then assists the defendant with information and resources needed to complete the terms of probation.  The role of a probation officer is to keep in close contact with defendants to ensure that they know how to complete the requirements of their probation and to ensure that they remain on track and on schedule.  The conditions attached to either type of probation can vary greatly.  Courts have the power to include a wide range of conditions, so long as a defendant’s probation conditions are reasonably related to his crimes and situation.[18]

 Community service (which can also be part of a pre-trial diversion) requires defendants to complete a specified number of hours of work benefitting the community.  The work may include menial tasks like picking up litter or things like speaking to children at schools about staying away from drugs. There’s really no limit on what it might entail, so long as it benefits the community.  While community service may be imposed without probation, it is more often imposed as a condition of probation so that a probation officer can assist the defendant with finding appropriate service to do and with making sure the service gets completed and documented.

 When a judge wants to avoid incarcerating a defendant but wants something more intensive than probation, house arrest may be a sentencing option.  House arrest, also known as home confinement, can be individually customized.  Some offenders may be required to remain at home twenty-four hours per day while others may be allowed to go shopping or even to work, while remaining at home at all other times. In the past, monitoring companies would call defendants at their homes periodically to ensure they were there.  With the advent of mobile phones and other mobile technology, electronic monitoring has largely replaced the call-home system.  Electronic monitoring devices, often worn by defendants around their ankles, can alert a monitoring company electronically as to defendants’ whereabouts. 

 Completion of an outpatient or inpatient treatment program is another sentencing option available to judges, provided that the defendant is able to afford the program.[19]  Defendants may be ordered to complete programs that address drug abuse issues, mental health (such as anger) issues, or both. Because treatment programs necessarily involve medical professionals, they are often expensive and not a real option for many who need them the most.  Another barrier to this option is that some treatment facilities are hesitant to admit convicted criminals to their programs, particularly those with violent tendencies.

 The final sentencing option is incarceration, which is mandated for most serious crimes. Within legislative parameters, the judge decides how long a defendant will be incarcerated, and whether there will be continued community-based supervision following release.  Misdemeanor sentences are served in county jail.  For felony offenses, defendants may serve sentences shorter than one year in a county jail but must serve longer sentences in a state or federal prison. 

 Sentence Structures

                Judicial discretion can lead to a wide variety of sentencing structures.  For example, sentences can include both probation and treatment.  Or, they can include both incarceration and a community-based element.  The manner in which these different components are ordered or otherwise coordinated is known as the sentence structure.

            A concurrent sentence means the defendant has been ordered to serve sentences for multiple charges or in multiple cases simultaneously.  For example, if a defendant is sentenced to one year in prison for an assault and another for a robbery, a concurrent sentence would mean that one year in prison would satisfy both sentences.  In contrast, a consecutive sentence structure would require the sentence in each case to be served independently of the others. Whether a sentence must be served concurrently or consecutively may be mandated by statute or guideline, may be left to the sentencing judge or may be determined as part of a negotiated plea.[20] 

 A suspended sentence is any sentence that is not immediately put into effect.  Generally, a suspended sentence is contingent on a defendant either fulfilling certain requirements or avoiding certain behaviors. If the defendant fails to fulfill requirements or engages in the prohibited behaviors, the judge may put the previously suspended sentence into effect.[21]  For example, an offender convicted of violating a criminal traffic offense (such as driving under the influence) might receive a suspended 30-day jail sentence contingent upon the offender not being caught driving under the influence again over the next year.   If the defendant stays clean for the year, he avoids the jail time.  However, if he is caught driving under the influence again, the judge may revoke the suspended jail sentence and send the defendant to jail for the 30 days in addition to any applicable sentence from the new criminal conduct.

 A split sentence describes a period in jail or prison followed by a period of probation, home confinement, or other form of community-based supervision.[22]  The exact term of the imprisonment preceding the community-based supervision is largely left to the discretion of the sentencing judge.  Defendants in both state court and federal court may receive split sentences, but the likelihood of receiving one depends on both the type of offense committed and the sentencing guidelines for that offense. If a defendant violates the terms of community-based supervision, the sentencing judge may revoke that portion of the split sentence and order the defendant to return to prison. 

             In some states there also exists a less common sentencing structure known as the reverse split sentence.  In a reverse split sentence, a defendant is ordered to first complete a period of probation or other community-based supervision, which is then to be followed by a period of incarceration.[23]  The goal of this sentence is to motivate defendants to successfully complete the terms of the community-based supervision, after which he may request that the sentencing judge either reduce or suspend the remaining term of incarceration.  Often defendants who have successfully completed their community-based supervision without any violations are granted suspended or at least reduced periods of incarceration. 

             In our next module, we will discuss the factors that go into determining sentences and explore the procedures that must be followed before and during sentencing hearings.



[1] 18 U.S.C. § 3553(a) (2018)

[2] Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311, 314 (2003) (only Arizona, Kentucky, Missouri, Oklahoma, Texas, and Virginia continue to routinely allow jury sentencing).

[3] Unites States v. Vasquez, 638 F.2d 507, 534 (2d Cir. 1980).

[4] See Robinson v. California370 U.S. 660, 675 (1962).

[5]  Enmund v. Florida, 458 U.S. 782 (1982).

[6] See Wilkerson v. Utah99 U.S. 130 (1879).

[7]  Roper v. Simmons543 U.S. 551 (2005).

[8] Atkins v. Virginia536 U.S. 304 (2002).

[9] Hurst v. Florida, 577 U. S. __, 136 S. Ct. 616 (2016).

[10] Death Penalty Information Center, https://deathpenaltyinfo.org/states-and-without-death-penalty (last visited Apr. 9, 2019).

[11] Ala. Code § 13A-5-46 (2017) (requiring a vote of at least 10 jurors).

[12]  U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Felony Sentences in State Courts, 2006 Statistical Tables 24-25,  (2009) https://www.bjs.gov/content/pub/pdf/fssc06st.pdf (last visited Apr. 9, 2019).

[13] Emily Yoffe, Innocence is Irrelevant, The Atlantic, Sept. 2017, https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/.

[14] U.S. Const. amend. VI.

[15] Diversion program, Black’s Law Dictionary (10th ed. 2014).

[16] Bearden v. Georgia, 461 U.S. 660, 673 (1983).

[17] Probation, Black’s Law Dictionary (10th ed. 2014).

[18] People v. Lent, 541 P.2d 545, 548 (Cal. 1975). 

[19] See Bearden v. Georgia, 461 U.S. 660, 673 (1983).  Eg. Texas Department of Criminal Justice Community Justice Assistance Division, Texas Progressive Interventions and Sanctions Bench Manual (2017), https://www.tdcj.texas.gov/documents/cjad/CJAD_Bench_Manual.pdf.

[20] See Oregon v. Ice, 555 U.S. 160 (2009).

[21] Suspended sentence, Black’s Law Dictionary, (10th ed. 2014).

[22] Ex Parte State, 13 So. 3d 915, 920 (Ala. 2008). See Federal Sentencing Guidelines Manual § 5D1.1 (2016).

[23] See, e.g., Fla. Stat. § 948.012(2) (2017)