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National Crime Victim Law Institute

What is “sentencing”?

December 10, 2012

Upon a finding of guilt (either through a plea agreement or at trial) on some, even if not all, counts charged, the formal imposition of the punishment occurs at a hear.  This is sentencing. Depending upon the jurisdiction, the judge or the jury decides the punishment that will be given to the offender.  In most jurisdictions, before a sentencing hearing is conducted, a parole or probation officer will prepare a presentence report (PSR). Most reports contain a variety of information that help inform the judge or jury on the proper sentence to impose.  Among this information is: 1) information about the offender’s prior criminal record; 2) information about the offender’s characteristics, financial condition, social history, and circumstances affecting behavior; and 3) information about the victim, including the impact of the crime on the victim.

Importantly, no matter what is in the PSR, a court can only impose a sentence that is authorized by statute.  Sentencing statutes generally provide a maximum and minimum sentence that a court can impose.  In determining the appropriate sentence within that range, a court considers mitigating and aggravating factors.  Aggravating factors are any relevant circumstances that makes the harshest penalty appropriate. Mitigating factors are conditions or happenings which do not excuse or justify criminal conduct, but are considered out of mercy or fairness to reduce the severity of the punishment. 

In addition, some jurisdictions have sentencing guidelines.  Sentencing guidelines are a type of formula for calculating what the proper sentence is for a particular crime and a particular defendant.  Guidelines generally use a variety of factors, primary among these: 1) the severity of the conduct of the convicted offense; and 2) and the defendant’s criminal history.  From this calculation the court is given a range of possible sentences.  In some jurisdictions, such as the federal system, sentencing guidelines are merely advisory, meaning that a court is not required to follow them. 

Generally, a sentencing cannot occur unless the offender is present, although this requirement may be waived in certain instances. In addition, in most jurisdictions, the victim has the right to be present and give a victim impact statement at the sentencing. punishment.  Examples of mitigating factors are: defendant’s disadvantaged childhood, defendant suffers from mental health problems, and the defendant’s good behavior in jail.

At the sentencing hearing, the court generally has three options. First, the court may impose sentence, which may include imprisonment or some other punishment, such as probation, community service or a treatment program. Second, in many jurisdictions, the court may decide not to sentence the offender, but to instead suspend imposition of sentence and place the offender on probation. Finally, the court may impose sentence, but suspend execution of it and place the offender on probation subject to conditions.