How Does a Judge Decide What Sentence To Impose on a Defendant?

Federal judges have significant discretion in sentencing defendants convicted of a crime – whether through a guilty plea or trial verdict.  However, statutory requirements – including mandatory limits on the length of imprisonment terms – establish boundaries within which a sentence must fall. 

For example, a conviction on one count of federal mail fraud carries a maximum sentence of 20 years.  If a defendant were convicted on two counts of mail fraud, the maximum would be 40 years.  Other offenses carry mandatory minimum sentences.  A conviction for possessing cocaine can trigger a 5- or 10-year minimum sentence depending on the amount involved.

Sentences typically include any combination of:

• Imprisonment is a term of incarceration, usually served in a Federal Bureau of Prisons facility. Sometimes, a judge imposes a sentence of “home confinement,” during which the defendant serves all or some of the term of imprisonment in his home, wearing a monitoring device.  Usually, the defendant may leave for certain reasons, such as to receive medical care or attend court proceedings.
• Supervised release, also called probation, is a period of time during which the defendant must comply with certain court-mandated terms and conditions. The terms of supervised release can be varied and cover almost any topic.  Community service is a common condition.  One federal judge even sentenced a defendant to write a book!  Failure to comply with the terms may result in imprisonment.
• Monetary penalties are sometimes levied both as a fine paid to the government or as restitution paid to victims. The court also may require the defendant to forfeit assets that were the proceeds of the crime.  Finally, individual defendants must pay a $100 “special assessment” for each felony count on which they are convicted.

A judge must impose a sentence that is sufficient, but not greater than necessary, to: reflect the seriousness of the offense; promote respect for the law; provide just punishment for the offense; adequately deter criminal conduct; protect the public from further crimes by the defendant; and provide the defendant with needed educational or vocational training, or medical care. 

In considering the appropriate sentence in light of those factors, the judge will begin with the recommended sentence from the U.S. Sentencing Guidelines.  Developed in the 1980s as an effort to standardize sentencing in federal cases, the Sentencing Guidelines provide a recommended sentencing range.

The U.S. Probation and Pretrial Services Office prepares a “pre-sentence report,” or “PSR,” that makes an initial calculation of the Guidelines-recommended sentencing range.  Both the defendant and the prosecutors have the opportunity to make objections to the PSR and to advocate for the sentence that they believe is appropriate.  Ultimately, the judge performs the definitive Guidelines calculation.

The Guidelines take account of the nature and specific characteristics of the offense, providing a higher range for more serious offenses.  For example, if the offense resulted in a large monetary loss or involved a large number of victims, the Guidelines will recommend a more severe sentence.  The same is true if the defendant abused a position of trust or was a leader of the criminal activity. 

But the Guidelines will recommend a lower sentence if the defendant has accepted responsibility for his actions, or otherwise played a minor role in the offense conduct.  The Guidelines also factor in the defendant’s prior criminal history and recommend a more severe sentence for repeat offenders.

Initially, the Sentencing Guidelines were mandatory; a judge was required to impose a sentence that fell within their recommended range.  In 2005, however, the Supreme Court ruled that the Guidelines, mandated by Congress, were unconstitutional because they effectively allowed the legislature to usurp a role reserved for the judiciary. 

Now, the Guidelines are non-binding and purely advisory.  A district judge must consider them, but is not bound by them.  Thus, she is free to impose a sentence outside the Guidelines range – either above or below – in service of the sentencing factors.

One factor that may weigh heavily in a judge’s decision to order a sentence more lenient than that recommend by the Guidelines is a defendant’s assistance with the criminal investigation of another.  That can factor into a sentence in a number of ways. 

• First, even before a defendant appears before a judge, prosecutors may agree, as part of a plea agreement, to recommend a lower sentence or to charge a less serious crime in exchange for the defendant’s cooperation. 
• Second, the Guidelines allow prosecutors to make a motion for a lower Guidelines range – known as a “downward departure” – if the defendant has provided “substantial assistance” in the investigation or prosecution of someone else.
• Finally, even if the government refuses to make a motion for a downward departure, a defendant may nonetheless argue to the judge that he has cooperated with the government and, therefore, should receive a lower sentence.

A judge may also weigh certain intangible factors.  For example, a defendant who pleads guilty on the eve of trial may technically receive credit for accepting responsibility for his actions, but a sentencing judge might give that consideration less weight than if the defendant had acknowledged from the outset that his actions were criminal. 

Likewise, a judge may take account of a defendant’s good deeds in other areas of his life, considering whether the crime is an aberration on the record of an otherwise well-intentioned individual or whether the crime is just one chapter in a life filled with deceit.  A defendant will often submit letters from people he has known at various points in his life to paint a favorable picture.

In recent years, federal judges have sentenced nearly 70,000 individuals per year.

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