ABA Family Legal Guide

Criminal Justice

Court Procedures

Sentencing of Convicted Criminals

If a judge or a jury convicts me, how and when will the court sentence me?

In felony cases, sentencing is a separate procedure from the trial, and usually is held several weeks or even months after a conviction. After the verdict is read, the court will order a presentencing report from the probation department, which contains, among other things, the offender's criminal record and a sentence recommendation.

In misdemeanor cases, on the other hand, sentencing usually immediately follows a finding of guilt, and presentencing investigations are not conducted.

In most states the judge has some discretion in choosing your sentence. For misdemeanors, the judge usually chooses between a fine, probation, a suspended sentence, or a jail term (or a combination of these). For felonies, the choice is often between imprisonment and probation, depending on the crime.

For state offenses, the criminal code often specifies the minimum and maximum sentences for each specific crime. Often, these are designated as a range, such as three to five years. You may not receive more than the statutory maximum sentence. Any factor that would increase the maximum would need to have been submitted to the judge at trial. For federal offenses, the court follows the strict federal sentencing guidelines. Similar strict guidelines have been adopted by some states, including Florida, Minnesota, and Michigan.

The federal guidelines involve a complex formula that calculates an offense level based on several factors, such as the nature and complexity of the crime, any injuries to victims, and the defendant's criminal history. It then results in a certain number of points, which gives a range of incarceration (prison) time. In some very limited instances, a federal judge might be able to sentence you to a term that varies slightly from the required guidelines. If, for example, the judge finds that your criminal history score significantly underrepresents or overrepresents the seriousness of your actions, he or she can adjust your score upward or downward, affecting the length of time you would spend in prison.

Repeat offender laws have been enacted in some states to deter and punish people who commit crimes repeatedly. Under repeat offender legislation, judges are required to sentence people who commit crimes within a certain time period after their release from prison to the statutory maximum sentences on conviction. Offenders must then serve 100 percent of their sentence.