Sentencing in a Criminal Case – Tucson Criminal Defense

sentencing in a criminal case

Sentencing in a Criminal Case

Introduction to Sentencing

If a criminal defendant is unable to walk away from their trial with a non guilty verdict, or just want to plead guilty to the crime, there is a separate phase to determine sentencing in a criminal case for the individual. During this phase, the judge makes the decision as to what punishment the defendant will receive.i Generally speaking, the judge will have some level of discretion in determining the punishment, however, there are still guidelines and constitutional rights to be weary of when making this determination.

Types of Sentencing Generally

During sentencing in a criminal case, the judge has a variety of options for the defendant in terms of sentencing. Those options include:

  • Fines;
  • Incarceration in jail (shorter term);
  • Incarceration in prison (longer term);
  • Death (depending on the state);
  • Probation
  • Suspended sentencing (which takes effect if conditions such as probation are violated);
  • Payment of restitituion to the crime victim;
  • Community service; and
  • Drug and/ or alcohol rehabilitation.ii

Sentencing in a criminal case will generally take place almost immediately after the conviction for infractions and minor misdemeanors, or if the defendant has pled guilty.iii iv

Factors That Influence Sentencing in a criminal case

Even though the judge has discretion for determining a sentence, there are factors that the judge will consider in determining what sentence is not only appropriate but also proportional to the crime.vThe judge could consider any of the following:

  • The defendant’s criminal history, or lack thereof;
  • The nature of the crime, the manner in which it was committed, and the impact it had on the victim (or their family);
  • The defendant’s personal, economic, and social circumstances; and
  • Regret or remorse expressed by the defendant.vi

The judge will likely also consider mitigating factors, if those are presented. This could include testimony that the defendant was abused by her husband and as a result of her reaction to the abuse, the offense happened. The defense counsel could present any number of mitigating factors for the defendant, or even have the defendant’s family speak at the trial to try and boost the defendant’s character.

The Role of the Prosecutor, Defense Counsel, and Defendant

In more complex cases, especially cases involving felonies, sentencing in a criminal case will require a separate hearing at a later date.vii The judge will typically wait to receive input from the prosecutor, the defense team, and the probation department through a pre-sentence report.viii

The judge may also set a hearing to hear oral argument from the defense team as well as the prosecution over what the sentence should be.ix The defendant will also have the opportunity to speak at the sentencing hearing, as does the victim or the victim’s family.x Rule 32 (i)(4)(A) of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak before the court before a sentence is imposed.xi For the prosecutor, this is a separate right from the oral arguments that the judge could require.

The prosecutor will argue to the court the aggravating factors in the crime and past criminal behavior on part of the defendant.xii The defense team will typically respond to these statements with arguments that justify a lighter penalty.xiii This could be done through mitigating factors (like the defendant was abused as a child), or through showing the court the community ties the defendant has (he is a family man, or goes to church regularly etc.). If there was a presentence was produced by the prosecution, this would be an ideal time for the defense counsel to point out mistakes or errors in the report, which could weigh heavily on the defendant.

The most important person to speak at a sentencing hearing is going to be the defendant, unless the defendant has no remorse for their crime. If the defendant does have remorse, or wants to speak to before the court to try and reduce their sentence, the defendant has the right to do so.xiv This right is referred to as the “defendant’s right of allocution”. The defendant’s speech before the court could have substantial weight on their sentencing in a criminal case, so often times the defendant will work closely with their attorney to prepare for what they will say in court.xv Not everyone is gifted with words, and so to have the best impact possible, preparation before hand can be key.

The Role of the Victim

sentencing in a criminal caseThe role of the victim, or the victim’s family is historically a minor role. However, their role has become much more important and active throughout the entire process. Not only will the victim or their family speak at the sentencing hearing, they will be involved throughout the entire process.xvi The victim or their family will provide statements for the prosecution during the pretrial phase, as well as the sentencing phase. During the sentencing phase, the victim or their family may tell the judge about the impact the crime has had on the victim’s life, the pain the victim has suffered, or any other details to show why the defendant deserves no leniency during sentencing in a criminal case.xvii

The victim or their family will also meet with the probation officer to provide a statement for the probation officer’s pre-sentencing report.xviii This statement could include the victim’s version of the offense, detail any physical, psychological, or monetary damage the victim suffered as result of the crime.xix The victim or their family can also provide a victim impact statement directly at the sentencing hearing.xx The impact statement will be addressed to the court for the judge to hear and take into account how the victim or their family (or both) was impacted as a result of the crime. Just as the defendant will work with their defense team for their statement, the victim or their family will likely work with the prosecution or probation officer to prepare their statement.xxi

Conclusion to Sentencing

The sentencing in a criminal case can be a complex proceeding that could require additional hearings, reports, and arguments before the court. If a defendant just pleads guilty to a crime, the additional time needed could be reduced. For defendants who go through a trial and are found guilty, depending on the severity of the crime, the sentencing phase could take much longer.

It is important to note that even if a defendant is found guilty and receives a sentence, that does not automatically mean that the defendant has no appeal rights. It is a common misconception that once you are sentenced, the process is over. An appeal takes place after sentencing occurs, even if the appeal gets filed right after trial. The sentencing phase is required for a guilty defendant, but it does not mean it is the end of their fight against that verdict.


i See Sentencing Overview NOLO Legal Encyclopedia (April 4, 2017) http://criminal.findlaw.com/criminal-procedure/sentencing-overview.html

ii Id.

iii Id.

iv I See Sentencing Overview NOLO Legal Encyclopedia (April 4, 2017) http://criminal.findlaw.com/criminal-procedure/sentencing-overview.html

v Id.

vi Id.

vii Id.

viii Id.

ix See What Happens at Sentencing Nolo Legal Encyclopedia (Accessed April 4, 2017) http://www.nolo.com/legal-encyclopedia/what-happens-sentencing.html#

x Id.

xi Id.

xii Id.

xiii Id.

xiv Id.

xv See What Happens at Sentencing Nolo Legal Encyclopedia (Accessed April 4, 2017) http://www.nolo.com/legal-encyclopedia/what-happens-sentencing.html#

xvi Id.

xvii Id.

xviii Id.

xix Id.

xx Id.

xxi Id.