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Sentencing Law FAQ

While the possible sentence for a crime is often provided in a statute, there are usually a variety of factors that will effect how a criminal defendant will be sentenced after conviction. Here are answers to the most commonly asked questions about sentencing law.


Contrary to what many in the public think, it's judges, not juries, that almost always determine sentencing for a convicted criminal defendant. It's pretty common for the judge to tell the jury not to consider punishment when determining whether a criminal defendant is guilty or not guilty. Indeed, many times a mistrial is declared when it can be shown that the jury considered punishment when determining guilt.

However, there are some occasions when a jury will decide a convicted criminal's punishment. For example, in capital punishment cases (death penalty cases) in some states, judges are not permitted to impose the death penalty and it's up to a jury to decide whether a convicted criminal should be sentenced to die.



There are other laws that define certain activities as a misdemeanor but don't specifically define the punishment. In situations like these, the punishment will normally be found in a separate law that sets forth punishments for misdemeanors.

However, it's often the case that the punishments and sentences for many crimes will not be found in statutes or court rules. When this happens, you'll probably have to do some digging to find out about any potential punishments. You would be well advised to take these steps:

  • If you can't afford to talk with a private attorney, talk to an attorney in the public defender's office.

Keep in mind that if you have prior convictions or criminal punishments on your record, the sentence that's provided in a statute may not be the punishment you would get. Judges frequently add enhancements to sentences when the convicted has a criminal record.




What factors do judges take into account when considering punishments?

If the judge isn't limited by a mandatory minimum sentence, some other law, or laws limiting their discretion, the defense is normally allowed to bring a plethora of factors to the judge's attention. Here are some examples of factors that judges often take into consideration when determining punishment:



For example, if a criminal defendant has a criminal record of committing the same types of crimes over and over, it may appear to a judge that the previous criminal punishments haven't been adequate and could sway the judge to impose a harsher punishment. As another example, if a criminal defendant was particularly malicious in the commission of a crime, a harsher punishment may be in order (examples include using a weapon during a crime, or inflicting physical or mental harm on a victim).

More Questions About Sentencing Laws? Contact an Attorney


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