How Does a Judge Sentence a Defendant?
While judges have discretion when it comes to determining the sentence of someone convicted of a crime, there are several factors listed below that the judge will consider.
AP&P Pre Sentence Report
Adult Probation and Parole (AP&P) is a government agency that prepares a pre-sentence report. This report details the defendant’s prior convictions, probation and parole history, personal history, friends, education, gang affiliation, employment history, and any other factors they deem relevant. An officer from AP&P will typically interview the defendant prior to the sentencing hearing regarding the above mentioned subjects to get a feel for the needs of the defendant, such as his need for supervision (e.g. probation and parole recommendations), treatment services (e.g. drug treatment), and other resources that may be helpful in rehabilitating him.
The pre-sentence report will ultimately make a recommendation (e.g. 24 months in prison) and be presented to the judge prior to the hearing. The judge is not obligated to follow this recommendation, but it seems that this report frequently plays the most crucial role in the judge’s decision.
Concurrent vs. Consecutive Sentences
If a defendant is convicted of more than one crime, or is already imprisoned on a previous crime, the judge has to decide whether to run his sentences concurrently or consecutively.
A concurrent sentence is when the defendant serves all of the sentences at the same time. This is more favorable for the defendant because it ultimately means less time spent incarcerated. A consecutive sentence is when the defendant must finish serving the sentence for one conviction before the clock starts running for the second conviction.
For example, Defendant was convicted of two second degree felony charges, each carrying a sentence of five years. If the judge runs these two terms concurrently, Defendant’s total sentence will be five years in prison because both five year prison terms will be served at the same time. If the judge runs these two terms consecutively, Defendant’s total sentence will be 10 years in prison because Defendant will serve the first five years for the first crime, and then the second five years for the second crime.
In determining whether offenses are to run concurrently or consecutively, the judge must consider the gravity of the offense, the circumstances surrounding the offense, the number of victims, and the history, character, and rehabilitative needs of the defendant.
Statements by Victims, Defendant, and Others Affected
Victim Impact Statements. At the sentencing hearing, victims of the defendant’s crime(s) will usually have an opportunity to speak. A victim will speak of how the defendant’s crime impacted their life, and typically ask that the judge issue the maximum possible sentence.
Defendant’s Statement. Defendants are also provided an opportunity to speak at their sentencing hearing, even though many choose not to. A statement may also be submitted by the defendant’s attorney. This statement will attempt to detail mitigating factors, defendant’s value to society, the hardship it would place on defendant’s family to have the defendant imprisoned, and other relevant details that enable the judge to view the defendant in a better light.
Others Affected. Occasionally there may be a parent, grandparent, sibling, spouse, child, or other dependent who speaks at the sentencing hearing. Usually this kind of statement details how the defendant plays a crucial role as a breadwinner, caretaker, companion, or parent.
Types of Sentences
The judge has three basic types of sentences available:
- Financial sanctions. The judge can impose fines and restitution orders on the offender.
- Release. The judge may release the offender into the community with or without restrictions. Restrictions the judge may impose on the offender may include probation, house arrest, or daily check-ins with law enforcement.
- Incarceration. The judge may sentence the offender to time in jail or prison.