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. 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.
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
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. 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.
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
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.
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. 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.
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.
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.
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.
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. 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.
Asplit sentence describes a period in jail or prison followed by a period of probation, home confinement, or other form of community-based supervision. 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.
 18 U.S.C. § 3553(a) (2018)
 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).
 Unites States v. Vasquez, 638 F.2d 507, 534 (2d Cir. 1980).
 Enmund v. Florida, 458 U.S. 782 (1982).
 Hurst v. Florida, 577 U. S. __, 136 S. Ct. 616 (2016).
 Death Penalty Information Center, https://deathpenaltyinfo.org/states-and-without-death-penalty (last visited Apr. 9, 2019).
 Ala. Code § 13A-5-46 (2017) (requiring a vote of at least 10 jurors).
 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).
 Emily Yoffe, Innocence is Irrelevant, The Atlantic, Sept. 2017, https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/.
 U.S. Const. amend. VI.
 Diversion program, Black’s Law Dictionary (10th ed. 2014).
 Bearden v. Georgia, 461 U.S. 660, 673 (1983).
 Probation, Black’s Law Dictionary (10th ed. 2014).
 People v. Lent, 541 P.2d 545, 548 (Cal. 1975).
 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.
 See Oregon v. Ice, 555 U.S. 160 (2009).
 Suspended sentence, Black’s Law Dictionary, (10th ed. 2014).
 Ex Parte State, 13 So. 3d 915, 920 (Ala. 2008). See Federal Sentencing Guidelines Manual § 5D1.1 (2016).
 See, e.g., Fla. Stat. § 948.012(2) (2017)