LEGAL GUIDE
Written by Avvo Staff | Feb 10, 2016

How do judges determine criminal sentences?

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Judges take many factors into consideration when determining criminal sentencing. However, judges must make decisions within the confines of the statute that you are convicted under, and often must consider other sentencing laws, including sentencing guidelines.

How does a judge decide my sentence?

Unless you plead guilty to a criminal charge, a jury will decide whether you are innocent or guilty. However, the jury does not determine the sentence. It is the judge’s job to order a penalty for your conviction.

The criminal statute under which you were convicted provides the appropriate sentence for the particular crime. The statute will usually include a minimum and a maximum sentence. For instance, a statute may provide that a conviction for theft could result in 1 to 5 years in prison. Once the judge determines the appropriate sentence range provided by the statute, they will consider aggravating and mitigating circumstances. The judge may also consider state or federal sentencing guidelines and other sentencing laws, which could raise your sentence to above the maximum provided for by the statute.

Aggravating and mitigating circumstances

During your sentencing hearing, the judge will consider both negative and positive factors about you and your crime, which are called mitigating and aggravating circumstances. The judge balances the negative and positive factors to determine whether you should receive the minimum sentence, the maximum sentence, or something in between.

  • Mitigating circumstances could include factors such as mental health, the fact that it is your first offense, your remorsefulness and willingness to take responsibility for your actions, proof of rehabilitation, and other life circumstances.

  • Aggravating circumstances could include prior criminal history, the seriousness of your crime, and the extent of any victims’ injuries.

Sentencing guidelines

The United States federal sentencing guidelines provide a policy of how to sentence a defendant based on both the seriousness of the crime and the defendant’s criminal history. The guidelines provide for a rigid calculation. First, the judge determines the seriousness of the crime using different “base levels.” The lowest base level is base level 1, which represents the least serious offenses. The highest is base level 43, which represents the most serious offenses.

Once the judge determines the base level, he or she will next choose a criminal history category from 1 to 6. Category 1 represents people with minimal criminal history, whereas category 6 represents people with extensive prior convictions. Once the judge determines the base level and the criminal history category, he or she will use a chart to determine the sentence range. The range calculated using the guidelines is a strong recommendation, but the judge ultimately decides the proper sentence.

Judges must consider federal sentencing guidelines when sentencing defendants under federal law, but states have their own laws. While some states have laws that mirror the federal guidelines, others follow different sentencing rules.

Three-strikes law

Three-strikes sentencing laws dramatically increase a defendant’s sentence for a third conviction. For instance, the federal three-strikes law requires life imprisonment for a convicted felon if the felon is convicted in a federal court of a serious violent felony, and already has 2 or more convictions in either state or federal court for serious felonies. Serious felonies include murder, manslaughter, sex offenses, kidnapping, robbery, or other offenses involving the use of force.

About half of the states have their own versions of the three-strikes law, and many defendants have challenged such laws as unconstitutional under the Sixth Amendment.

Mandatory minimum sentences

Mandatory minimum sentences generally require a judge to ​impose a minimum prison sentence for people convicted of certain crimes, usually drug crimes. A mandatory minimum sentence prohibits a judge from imposing a sentence lower than provided for in the statute but allows a judge to impose a higher sentence so long as the judge follows the relevant laws and sentencing guidelines.

A judge’s decision is based on many factors, so it is difficult to calculate your sentence with absolute certainty. A criminal defense lawyer who knows the details of your case will be able to provide the best estimate.

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