Sentencing

After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a convicted criminal defendant, including:

• Fines;

• Incarceration in jail (shorter-term);

• Incarceration in prison (longer-term);

• Probation;

• A suspended sentence, which takes effect if conditions such as probation are violated;

• Payment of restitution to the crime victim;

• Community service; and

• Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a "pre-sentence report").

The sentencing judge will also consider punishments and sentencing ranges identified in applicable criminal statutes, as well as a number of case-specific factors, including:

• The defendant's criminal history, or lack thereof;

• The nature of the crime, the manner in which it was committed, and the impact on victims, i.e. whether injuries resulted;

• The defendant's personal, economic, and social circumstances; and

• Regret or remorse expressed by the defendant.

There are many different types of sentences:

• 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.

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.

Alternatives to Incarceration

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