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Sentencing and Sentencing Guidelines

Sentencing and Sentencing Guidelines

Sections within this essay:

Background
Types of Sentences
Factors Considered in Determining a Sentence
"Three Strikes" Sentencing Laws
Uniformity and Consistency
Alternative Sentences
Sentencing Commissions
Selected State Sentencing Provisions
Additional Resources
Organizations
United States Sentencing Commission

Background

A sentence is a formal judgment pronouncing a specific punishment to be imposed for the conviction of a crime. It may involve the payment of a fine, community service, incarceration, or, in capital offenses, the death penalty. It also may consist of a term of probation or parole (although parole has been abolished in many states).

Sentences may be meted out directly following the entry of a verdict or at a "sentencing hearing" scheduled for a later date. In the interim, prosecutors prepare a "sentencing report" which advises the court of the defendant's prior criminal record, aggravating or mitigating circumstances, and other information about the defendant that may assist the court in deciding an appropriate punishment.

There have been concerted efforts over the years to standardize the approach toward sentencing, particularly in felony offenses, and to diminish judicial discretion in sentencing. These efforts reflect a vacillating but recurring perception by lawmakers and the public at large that arbitrary or discriminatory practices may interfere with fair and just sentencing in certain cases or for certain crimes. However, the U.S. Supreme Court severely limited the ability of the federal government and state governments to enacted uniform sentencing guidelines when the Court ruled that these mandatory guidelines were unconstitutional.

Types of Sentences

Listed below are the types of sentences imposed:

  • A concurrent sentence is served at the same time as another sentence imposed earlier or at the same proceeding.
  • A consecutive (or cumulative) sentence occurs when a defendant has been convicted of several counts, each one constituting a distinct offense or crime, or when a defendant has been convicted of several crimes at the same time. The sentences for each crime are then "tacked" on to each other, so that each sentence begins immediately upon the expiration of the previous one.
  • A deferred sentence occurs when its execution is postponed until some later time.
  • A determinate sentence is the same as a fixed sentence: It is for a fixed period of time.
  • A final sentence puts an end to a criminal case. It is distinguished from an interlocutory or interim sentence.
  • An indeterminate sentence, rather than stating a fixed period of time for imprisonment, instead declares that the period shall be "not more than" or "not less than" a certain prescribed duration of time. The authority to render indeterminate sentences is usually granted by statute in several states.
  • A life sentence represents the disposition of a serious criminal case, in which the convicted person spends the remainder of his or her life in prison.
  • A mandatory sentence is created by state statute and represents the rendering of a punishment for which a judge has/had no room for discretion. Generally it means that the sentence may not be suspended and that no probation may be imposed, leaving the judge with no alternative but the "mandated" sentence.
  • A maximum sentence represents the outer limit of a punishment, beyond which a convicted person may not be held in custody.
  • A minimum sentence represents the minimum punishment or the minimum time a convicted person must spend in prison before becoming eligible for parole or release.
  • A presumptive sentence exists in many states by statute. It specifies an appropriate or "normal" sentence for each offense to be used as a baseline for a judge when meting out a punishment. The statutory presumptive sentence is considered along with other relevant factors (aggravating or mitigating circumstances) in determining the actual sentence. Most states have statutory "presumptive guidelines" for major or common offenses.
  • A straight or flat sentence is a fixed sentence without a maximum or minimum.
  • A suspended sentence actually has two different meanings. It may refer to a withholding or postponing of pronouncing a sentence following a conviction or it may refer to the postponing of the execution of a sentence after it has been pronounced.

Factors Considered in Determining a Sentence

Judges, not juries, determine punishments for a crime (in capital punishment cases, the jury usually decides whether to recommend death or life in prison).

The Eighth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In addition to the sentencing prohibitions contained in the Constitution, Title 18 of the United States Code, Part II (Criminal Procedure ), Chapters 227 (Sentences), 228 (Death Sentence), and 232 (Miscellaneous Sentencing Provisions) also govern sentencing in federal courts. Similarly, state court sentencing procedures are governed by state laws and constitutions as discussed below.

Most crimes are specifically enumerated in constitutions or statutes, and the provision that identifies the specific crime will also identify the appropriate punishment. For example, a statute may read, "Violation of this statute constitutes a misdemeanor, punishable by a fine not to exceed $500 or imprisonment not to exceed 30 days, or both." Given this range of potential punishment, a judge will then consider certain "aggravating" or "mitigating" circumstances to determine where along the prescribed spectrum a particular criminal's punishment should fall. Common factors considered by judges include:

  • whether the offender is a "first-time" or repeat offender
  • whether the offender was an accessory (helping the main offender) or the main offender
  • whether the offender committed the crime under great personal stress or duress
  • whether anyone was hurt, and whether the crime was committed in a manner that was unlikely to result in anyone being hurt
  • whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc.
  • (sometimes) whether the offender is genuinely contrite or remorseful

Under Federal Rule of Criminal Procedure 32(a), before imposing a sentence, the court must afford counsel an opportunity to speak on behalf of the defendant. The court will address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The attorney for the government will have an equivalent opportunity to speak to the court. Similar provisions are contained in most state procedural statutes and rules. In many state courts, a victim or the survivors of a victim may also have the opportunity to address the court and recommend leniency or strictness for the sentence.

"Three Strikes" Sentencing Laws

Under the Violent Crime Control and Law Enforcement Act of 1994, the "Three Strikes" statute (18 U.S.C. § 3559(c)) provides for mandatory life imprisonment if a convicted felon:

  • been convicted in federal court of a "serious violent felony" and
  • has two or more previous convictions in federal or state courts, at least one of which is a "serious violent felony." The other offense may be a serious drug offense.

The statute goes on to define a serious violent felony as including murder, manslaughter, sex offenses, kidnapping, robbery, and any offense punishable by 10 years or more which includes an element of the use of force or involves a significant risk of force.

The State of Washington was the first to enact a "Three Strikes" law in 1993. Since then, more than half of the states, in addition to the federal government, have enacted three strikes laws. The primary focus of these laws is the containment of recidivism (repeat offenses by a small number of criminals). California's law is considered the most far-reaching and most often used among the states.

Three strikes laws have been the subject of extensive debate over whether they are effective. Defendants sentenced to long prison terms under these laws have also sought to challenge these laws as unconstitutional. For instance, one defendant was found guilty of stealing $150 worth of video tapes from two California department stores. The defendant had prior convictions, and pursuant to California's three-strikes laws, the judge sentenced the defendant to 50 years in prison for the theft of the video tapes. The defendant challenged his conviction before the U.S. Supreme Court in Lockyer v. Andrade (2003), but the Court upheld the constitutionality of the law.

Uniformity and Consistency

In addition to "three strikes" laws, other state and all federal criminal statutes include mandatory sentences that require judges to impose identical sentences on all persons convicted of the same offense. Mandatory sentences are a direct result of state legislatures' or Congress' response to the public perception of judicial leniency or inconsistency in sentencing practices.

However, most crimes do not carry mandatory sentences. If sentencing is not mandatory, judges may "fit the punishment to the offender" rather than "fit the punishment to the crime." Competing theories about criminal justice help to fuel the different approaches to sentencing and punishment. These include the severity of punishment meted, and the specific objective sought by the punishment:

  • Retribution: Some believe that the primary purpose of punishment should be to punish an offender for the wrong committed, society's vengeance against a criminal. The sentiment is to punish criminals and promote public safety by keeping them "off the streets."
  • Rehabilitation: Others believe that the primary purpose of punishment should be to rehabilitate criminals to mend their criminal ways and to encourage the adoption of a more socially acceptable lifestyle. Most experts agree that this theory is commendable but not practical in prisons. Many criminals boast of coming out "better criminals" than they were when they entered prison.
  • Deterrence: Still others argue that the perceived punishment for a crime should be so undesirable as to result in deterring someone from actually committing a crime for fear of the likely punishment. Again, the theory is commendable, but many crimes are committed on impulse or under the influence of alcohol and other drugs. Fear of punishment is usually not a deterrent under these circumstances. Moreover, repeat offenders do not fear incarceration the way that people who have been free all their lives might.

Alternative Sentences

Forced to face prison overcrowding and failed attempts at deterrence or rehabilitation, many professionals in the criminal justice system have encouraged "alternative sentencing," which refers to any punishment other than incarceration. Most alternative sentences are really variations of probation, e.g., a fine and community service, along with a set period of probation. Some judges have gotten more creative in their sentencing. In many jurisdictions, convicted persons have been required to do the following:

  • install breathalyzer devices in their vehicles ("ignition interlocks") to prevent their operation of the vehicle without blowing into the device to determine whether their breath is free of alcohol
  • carry signs which inform the community of their offense
  • stay at home under "house arrest"
  • complete alcohol or other drug treatment programs
  • attend lectures given by crime victims

Sentencing Commissions

The U.S. Sentencing Commission was created in 1984 as part of the Sentencing Reform Act provisions that were included in the Comprehensive Crime Control Act of 1984 (28 U.S.C. § 994). The Commission's principal purpose has been to establish uniform sentencing guidelines and practices for the federal court system. The guidelines provide 43 levels of offense seriousness that take into account not only the seriousness of the crime, but also the offender's criminal history. They apply to all federal felonies and most serious misdemeanors.

Decisions rendered by the U.S. Supreme Court in 2004 and 2005 altered the use of sentencing guidelines by state and federal courts. First, the Court in Blakely v. Washington (2004) ruled that the sentencing guidelines employed by the state of Washington were unconstitutional. The ruling caused many states to evaluate whether their own sentencing guidelines would survive constitutional muster. Moreover, some lower federal courts ruled that the federal sentencing guidelines were also unconstitutional. The Supreme Court resolved the question about whether mandatory provisions in the federal guidelines violated the Constitution. In two related cases, United States v. Booker and United States v. Fanfan, both decided in 2005, the Court ruled that the federal guidelines were indeed unconstitutional. According to the Court, judges may use their discretion in following the guidelines, but the guidelines may not be mandatory.

Prior to the Blakely decision, many states established their own sentencing commissions. The National Association of Sentencing Commissions (NASC), which includes the federal sector as a member, provides a forum, complete with national conferences, to promote the adoption of uniform or similar presumptive sentencing guidelines among jurisdictions. As of 2005, both the U.S. Sentencing Commission and state governments continued to explore possible means by which federal and state sentencing guidelines could be amended to conform to constitutional requirements.

Selected State Sentencing Provisions

ALABAMA: The Alabama Legislature formed the Alabama Sentencing Commission to study and make recommendations regarding the state's sentencing practices.

ALASKA: Alaska has judicially-created "benchmark" guidelines for felonies, with moderate appellate review. Parole has been abolished for most (two-thirds) felonies. There is no active sentencing commission for the state. The state legislature modified its sentencing scheme following the Supreme Court's decision in Blakely.

ARIZONA: Following the Supreme Court's decision in Blakely, state courts in Arizona have issued several rulings regarding the constitutionality of sentencing provisions under state law.

ARKANSAS: State courts employ voluntary guidelines for felonies. There is no appellate review. Arkansas has retained its parole system. There are guidelines which incorporate intermediate sanctions, with preliminary discussions for guidelines in juvenile cases. State sentencing commission was established in 1994.

DELAWARE: Delaware utilizes voluntary guidelines for felonies and misdemeanors. Parole has been abolished in the state since 1990. There is moderate appellate review of sentencing decisions. The state's sentencing guidelines incorporate intermediate sanctions.

DISTRICT of COLUMBIA: The district in 2004 created the District of Columbia Sentencing Commission, which reports directly to the city council.

FLORIDA: In Florida, guidelines were repealed in 1997 and replaced with statutory presumptions for minimum sentences for felonies. The state sentencing commission was abolished in 1998 after the adoption of the new statutory presumptive sentences. There is moderate appellate review of sentencing determinations. Parole has been abolished in the system.

IOWA: Iowa has established a legislative commission to study sentencing reform.

KANSAS: Kansas uses presumptive guidelines for felonies, with moderate appellate review. Parole has been abolished in the state. There are no guidelines for intermediate sanctions.

MARLYAND: Maryland's legislature created the Maryland State Commission on Criminal Sentencing Policy in 1998. There are voluntary guidelines for felonies, with no appellate review. Parole has been retained.

MASSACHUSETTS: In Massachusetts, there are presumptive guidelines for felonies and misdemeanors. A proposal is pending in the legislature for appellate review of sentencing determinations. Parole has been retained.

MICHIGAN: Michigan has been a member of the National Association of Sentencing Commissions since 1999. The state employs presumptive guidelines for felonies, with appellate review as authorized by statute. The state also maintains a restricted parole system. Shortly after the Supreme Court's decision in Blakley, the Michigan Supreme Court noted that the decision did not affect Michigan sentencing scheme.

MINNESOTA: The state has presumptive guidelines for felonies, with moderate appellate review. Parole has been abolished in the state. There are no guidelines for intermediate sanctions. In 2005, the Minnesota Legislature enacted a statute ensuring that the state's sentencing guidelines passed constitutional muster.

MISSOURI: Missouri uses voluntary guidelines for felonies, with no appellate review. Parole has been retained in the state.

NORTH CAROLINA: In North Carolina, there are presumptive guidelines for felonies and misdemeanors, with minimum appellate review. Since 1999, the state has incorporated a special dispositional grid for juvenile cases. Parole has been abolished in the state. In 2005, the North Carolina Legislature passed a statute ensuring that the state's sentencing laws conformed with Blakely.

OHIO: Ohio uses presumptive narrative guidelines for felonies. There is limited appellate review. Parole has been abolished and replaced with a judicial release mechanism. The state legislature is also considering structured sentencing for juvenile offenders.

OKLAHOMA: In Oklahoma, presumptive guidelines are in place for felonies. The state has retained a limited parole system. Legislative proposals are pending for appellate review of sentencing determinations.

OREGON: Oregon has presumptive guidelines for felonies, with moderate appellate review. Parole has been abolished. In 2005, the Oregon Legislature approved a statute ensuring that the state sentencing scheme conformed with Blakely.

PENNSYLVANIA: Presumptive guidelines are in place for felonies and misdemeanors, with minimum appellate review. Parole has been retained.

SOUTH CAROLINA: The state employs voluntary guidelines for felonies and misdemeanors with potential sentences of one year or more.

TENNESSEE: There are presumptive guidelines for felonies, with moderate appellate review. Parole has been retained. The sentencing commission was abolished in 1995. In 2005, the Tennessee Legislature approved a statute ensuring that the state sentencing scheme conformed with Blakely.

UTAH: The state uses voluntary guidelines for felonies and select misdemeanors (sex offenses). There is no appellate review. Parole has been retained in the state. The state also uses voluntary guidelines for its juvenile sentencing.

VIRGINIA: Virginia has voluntary guidelines for felonies, with no appellate review. Parole has been abolished. The state is studying juvenile sentencing guidelines.

WASHINGTON: The state employs presumptive guidelines for felonies, with moderate appellate review. Parole has been abolished in the state. Special guidelines for juvenile sentencing are in effect. In 2005, the Washington Legislature approved a statute ensuring that the state sentencing scheme conformed with Blakely.

WISCONSIN: In Wisconsin, the state employs voluntary guidelines for felonies. Legislative proposals are pending, which do not contemplate appellate review. The proposals also contemplate the abolishment of the state's parole system, as well as the creation of a new permanent sentencing commission.

Additional Resources

The Law and Policy of Sentencing and Corrections in a Nutshell. Branham, Lynn S., Thomson/West, 2005.

Law of Sentencing. Campbell, Arthur W., Thomson/West, 2004.

"State Sentencing Commissions." National Association of Sentencing Commissions. Available at http://www.ussc.gov/states.htm

Organizations

United States Sentencing Commission

One Columbus Circle, N.E.
Washington, DC 20002-8002 USA
Phone: (202) 502-4500
URL: http://www.ussc.gov/

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