How Does Sentencing Work in a Criminal Case?

How does sentencing work in a criminal case?

In a criminal case, sentencing is a separate stage after a guilty plea or verdict, when the judge decides the punishment. In federal court, a probation officer usually investigates and writes a presentence report. At a hearing, the judge then hears from the lawyers, the defendant and any victim present. The judge must impose a sentence "sufficient, but not greater than necessary" to serve the law's purposes. State procedures differ; this page explains federal rules, with some state examples. [8][12][13]

Whose sentencing rules does this page describe?

Most criminal cases are prosecuted under state law, and each state sets its own sentencing procedures. This page mainly explains federal sentencing under 18 U.S.C. § 3553 and Federal Rule of Criminal Procedure 32. It also mentions examples from Florida, North Carolina and Arizona. It does not describe every state. [13][1]

What happens between a conviction and the sentence?

In federal court, the period between conviction and sentence is mainly taken up by a presentence investigation, an inquiry into the case and the person. A probation officer conducts it and writes a report for the judge. There are narrow exceptions, including when the judge finds the record already contains enough information and explains that finding on the record. [8]

Under the federal rule, the report generally cannot be given to the court or shared with anyone until there has been a guilty plea, a no-contest plea or a guilty verdict. The exception is when the defendant has consented in writing. The rule also says the court must impose sentence without unnecessary delay. [2][8]

The probation officer usually interviews the defendant. On request, the officer must give the defendant's attorney notice of that interview and a reasonable opportunity to attend. [8]

Both sides receive the report and can object to it in writing. Each objection goes to the other party and to the probation officer. The officer may then meet with the parties, look into the issues further, and revise the report. [10]

States handle this stage in their own ways. In Florida, if a person who has been found guilty or has pleaded is determined to be incompetent to proceed before sentencing, the court must postpone the sentence. North Carolina's court system publishes an official form titled "Order For Presentence Commitment For Study." [1][3]

What is in a federal presentence report?

A federal presentence report applies the sentencing guidelines to the case. It calculates the offense level and the criminal history category. From those, it states the resulting sentencing range and the kinds of sentences available, and it identifies any basis for departing from that range. [8][9]

The report also describes the person's history and characteristics. This includes any prior record, financial condition, and circumstances affecting behavior that may help in choosing a sentence or treatment. [9]

The report includes information about the impact on any victim. When the law provides for restitution, which is repayment to victims for losses, the report includes enough information for a restitution order. [9]

What does the court consider when choosing a sentence?

Federal judges must consider both the offense and the person. The starting point is the nature and circumstances of the offense, together with the defendant's history and characteristics. The sentence must be sufficient, but not greater than necessary, to serve the purposes the law lists. [13]

Those purposes are to reflect the seriousness of the offense and provide just punishment, to deter crime, and to protect the public. They also include providing needed training, medical care or other treatment in the most effective way. [13]

The judge must also weigh several other factors. These include the kinds of sentences available and the guideline sentencing range. They also include the need to avoid unwarranted disparities between similar defendants and the need to provide restitution to victims. Rule 32 describes the guidelines as advisory. [13][14][8]

State law sets its own factors, and some statutes leave judges far less choice. North Carolina publishes a form for determining sentencing factors in certain impaired-driving cases. Arizona's statute on certain serious drug offenders directs a specific sentence and limits eligibility for probation. [4][5]

What happens at a federal sentencing hearing?

The hearing begins with checks on the report. The judge must confirm that the defendant and the defense attorney have read and discussed the presentence report. The lawyers may then comment on the probation officer's conclusions and on what sentence is appropriate. [10][11]

The judge may accept the parts of the report nobody disputes as findings of fact. For disputed parts, the judge must rule on the dispute or explain why a ruling is unnecessary. The court may also allow evidence on the objections. [11]

Finally, the judge announces the sentence and must explain the reasons in open court. The written judgment records the plea, the verdict or findings, the adjudication and the sentence. [6][7]

Can the person speak at sentencing?

Yes, in federal court. Before imposing sentence, the judge must address the defendant personally. The defendant may then speak or present any information that could lessen the sentence. This opportunity is often called allocution. [12]

The defense attorney must also have a chance to speak on the defendant's behalf. The prosecutor receives an equivalent opportunity. [11][12]

Victims may speak too. The court must address any victim who is present and allow the victim to be reasonably heard. If a party asks and shows good cause, these statements may be heard in camera, meaning privately rather than in open court. [12]

Are the federal sentencing guidelines mandatory?

The federal sentencing rule refers to them as the "Advisory Sentencing Guidelines." Federal law lists the guideline sentencing range as one of several factors the judge must consider, alongside the offense, the person's history, and the purposes of punishment. The presentence report calculates the range and identifies any basis for departing from it. [8][13][9]

What happens if the presentence report contains mistakes?

In federal court, the parties can object to the report in writing. The probation officer may meet with them, investigate further, and revise the report. At sentencing, the judge must either rule on any remaining dispute or decide that a ruling is unnecessary because the matter will not affect the sentence or will not be considered. [10][11]

Can a victim speak at a federal sentencing?

Yes. Under the federal rule, before imposing a sentence the court must address any victim of the crime who is present at sentencing. It must also allow that victim to be reasonably heard. The presentence report also includes information assessing the financial, social, psychological and medical impact on any victim. [12][9]

Is the defendant told about appeal rights after sentencing?

In federal court, yes. After sentencing, the court must tell the defendant about any right to appeal the sentence, whatever the plea was. A defendant who pleaded not guilty and was convicted must also be told of the right to appeal the conviction. [12]

Can the judge sentence outside the guideline range without warning?

Under the federal rule, the judge sometimes has to give notice first. If the judge is considering a departure on a ground that was not identified in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice and specify that ground. [10]