Sentencing

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About the Sentencing Phase

Sentencing is the phase of a criminal case in which a judge decides on the appropriate punishment for a person who has been convicted of a crime. In virtually all criminal cases, it is the judge’s, not the jury’s, job to decide on the appropriate sentence to impose. A criminal sentence can include any of the following punishments:

Incarceration
Monetary fines
Probation
Suspended sentence
Restitution
Community service
Rehabilitation programs
In the case of capital crimes, the death penalty

With regard to the factors a judge considers when deciding on a criminal sentence, the judge will typically begin with the recommended sentence provided in the criminal statute related to the crime for which the defendant was found guilty. In many jurisdictions, there may be mandatory minimum sentencing guidelines that the judge needs to follow.

The judge will also consider a number of case-specific, and defendant-specific factors. Those factors that suggest that the defendant deserves a harsher sentence are called “aggravating factors,” and those factors that suggest that the defendant deserves a lighter sentence are called “mitigating factors.” A few of those aggravating and mitigating factors include:

The nature of the crime;
The way in which the crime was committed;
The impact of the crime on the victim and the victim’s family;
The defendant’s criminal history;
The defendant’s personal, financial, and social circumstances;
Whether the defendant express regret or remorse for the crime.

Federal Rules of Criminal Procedure (Rule 32)

In federal court, the criminal sentencing process is dictated by Rule 32 of the Federal Rules of Criminal Procedure. This Rule lays out all of the steps that must be followed during the course of the criminal sentencing process. It serves as an important guide for prosecutors, defense attorneys, probation officials, defendants, and judges alike.

The Pre-Sentence Investigation

By law, once a person is found guilty of a crime, a probation officer in the Probation Department must conduct what is called a pre-sentence investigation. That investigation is a fairly extensive look at the facts and circumstances of the crime itself, as well as a detailed look into the defendant’s life, including the defendant’s criminal history, family life, upbringing, and economic circumstances.

The probation officer conducting the investigation will begin by reviewing records related to the case and the defendant, including court dockets, plea agreements, investigative reports, medical records, counseling and substance abuse treatment records, academic records, employment information, financial records, and more. In sum, the probation officer does a very careful evaluation of all aspects of the defendant’s life in a fairly in-depth review.

After reviewing all the necessary documents, the probation officer will interview the defendant. This interview is largely focused on the defendant’s history and circumstances. There will be inquiry about the defendant’s family, developmental history, familial and marital relationships, education, employment, health, substance abuse history, and financial situation. Also, the probation officer will inquire as to defendant’s feeling about the crime and will try to gauge the defendant’s level of remorse, if any.

The probation officer may also reach out to the prosecutor to gather additional information about the crime, the victim’s loss, and any other relevant documents related to the offense. The probation officer may also have additional interviews with victims, family members, employers, counselors, and others.

The Pre-Sentence Investigation (PSI) Report

Once the probation officer completes the investigation, then he or she must compile a “pre-sentence investigation report.” The report is commonly referred to as the “PSI.” The PSI is a form document that typically runs about 10 to 30 pages in length. It is meant to capture all of the relevant information about the defendant and the crime so that the judge can make an informed decision on the proper sentence. In sum, the PSI is the main document on which the judge and the parties rely when it comes to sentencing. That is why both the defense attorney and the prosecutor have the opportunity to object to things in the report that they believe are inaccurate or should be corrected (discussed below).

There are five main sections to the PSI, as follows:

Offense conduct. This section of the PSI describes in detail the conduct that led to the defendant’s crime. It is normally a section of the PSI that gives a lengthy narrative of the crime itself.

Offense levels. The PSI is required to advise the judge on the applicable Federal Sentencing Guidelines for the case. Thus, the PSI will inform the judge as to the applicable “base offense level” the relates to the crime for which the defendant is guilty. Further, the PSI will go through some of the specific “adjustments” to the offense level as necessary based on the facts of the case and the circumstances of the defendant. For example, the PSI may recommend that the judge lower the offense level by four levels if the defendant was a “minimal participant” in the offense.

Criminal history category. The Federal Sentencing Guidelines also assign each offender to one of six criminal history categories based on the extent of an offender’s past misconduct. Criminal History Category I is the least serious category, and it includes many first-time offenders. By contrast, Criminal History Category VI is the most serious category, which includes offenders with the most serious criminal records. The PSI is responsible for indicating the category applicable to the defendant.

Background of the person. The last main section of the PSI relates to the defendant’s life. It should include the defendant’s criminal record, financial condition, and any circumstances that affect the defendant’s behavior that may be helpful in imposing sentence or recommending treatment. It should also include any financial, social, psychological, and medical impact on any victim; and it should discuss whether restitution or other types of monetary forfeiture is necessary.

Sentencing recommendation. In the PSI, the probation officer will typically provide in a sentencing recommendation to the judge. The judge, of course, may choose to be guided by or entirely ignore the recommendation.

Objections and Corrections to the PSI

In federal court, the probation officer who prepared the PSI must give it to the defendant, the defense attorney, and the prosecutor at least 35 days before the sentencing hearing unless the defendant waives that minimum period (the time for a PSI may differ in state courts). Then, those parties all have an opportunity to object and ask for corrections to the report.

Under Rule 32, the parties have to state their objections within 14 days of receiving the PSI. Those objections can be to any part of the report, including factual information, Sentencing Guidelines ranges, and any policy statements in, or that should have been included in, the PSI.

After receiving the parties’ objections, the probation officer makes revisions as appropriate and must submit the revised PSI to the court and the parties seven days before the sentencing hearing.

Sentencing Memorandum

In addition to the PSI, the judge will normally allow the prosecutor and defense counsel to file a “sentencing memorandum” before the hearing. This written submission is a way to get sentencing arguments to the judge before the judge has made up his or her mind on sentencing.

While not mandatory, it is wise for both parties to submit a sentencing memorandum because it is a clear, organized way to make a powerful argument for a particular outcome. Oral arguments on the day of sentencing are not always as effective because the judge has typically made a decision on sentence by that point.

The 3553(a) Factors

As noted above, the judge who must decide a person’s sentence must consider a number of factors, including the nature of the crime and the defendant’s circumstances. Specifically, federal statute provides the judge with a list of factors that he or she must consider at 18 U.S.C. § 3553(a).

Section 3553(a) mandates that a judge must impose a criminal sentence that is “sufficient, but not greater than necessary” to comply with the reasons we have criminal sentencing; namely (i) retribution, (ii) deterrence, (iii) incapacitation, and (iv) rehabilitation.

Accordingly, the 3553(a) factors are as follows:

Factors To Be Considered in Imposing a Sentence – The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider

the nature and circumstances of the offense and the history and characteristics of the defendant;
the need for the sentence imposed
- A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- B) to afford adequate deterrence to criminal conduct;
- C) to protect the public from further crimes of the defendant; and
- D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
the kinds of sentences available;
the kinds of sentence and the sentencing range established for—
- A) the applicable category of offense committed by the applicable category of defendant as set forth in the [Sentencing Guidelines]
- B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission . . . ;
any pertinent policy statement [issued by the Sentencing Commission]
the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
the need to provide restitution to any victims of the offense.

Statutory Considerations

The judge must also consider certain other statutes that may apply to sentencing. For example, in cases involving federal drug trafficking offenders, a prosecutor may file a request under 21 U.S.C. § 851 for an enhanced (i.e., harsher) sentence. Thus, the judge will also need to factor in those statutory-based requests during sentencing.

Sentencing Departures

The judge is also called upon to review any applicable departures from the Sentencing Guidelines, which are normally contained in “policy statements” related to the Sentencing Guidelines. There are many such departures – either downward or upward – from the base level guideline recommendation, which a defense attorney and prosecutor would be wise to include in a sentencing memorandum.

For example, defense counsel may want to ask for a downward departure from the recommended sentencing guideline because the defendant gave “substantial assistance to authorities,” under policy statement §5K1.1. As another example, a defense attorney may request use of the “safety valve” law that authorizes a sentence below the statutory minimum for certain non-violent, non-managerial drug offenders with little or no criminal history.

Finally, a defendant or his counsel can ask for a “variance,” in addition to a departure. The difference is that a departure is normally a change from the guideline range when examining the provisions related to the Sentencing Guidelines. A variance, by contrast, changes from the guideline range when examining the provisions of the 3553(a) factors discussed above.

Procedure at the Sentencing Hearing Itself

The sentencing hearing is the proceeding in which the criminal sentence is officially imposed. At this point, all of the reports and sentencing memoranda have been filed. This is the time when the defendant stands before the judge to hear the sentence.

All sentencing hearings follow the same procedure. That procedure is as follows:

Arguments over the guideline range. The first part of the hearing is focused on the appropriate sentencing range based on the Sentencing Guidelines. Typically, the prosecutor will ask for certain enhancements and concede that certain downward departures should apply. Like two sides of the same coin, the defense counsel argue that variances and downward departures apply and the prosecutor’s requested enhancements should be rejected.

The testimony of witnesses for both government and defense. In some cases, but not all, the judge will allow witnesses to testify on the impact of the crime and what the appropriate sentence should be. The witnesses can be victims of the crime, and/or their families. They could also include those people vouching for the defendant and why he or she should receive a lighter sentence.

The argument over the appropriate sentence. After witnesses, if any, have testified, then the attorneys are allowed to give an argument about sentencing. Normally the defense attorney goes first, and then the prosecutor is heard.

Allocution of the defendant. After the arguments of counsel, the judge gives the defendant the right to speak. This is a time when the defendant can address the judge directly and talk about how remorseful he or she is for committing the crime. This part of the hearing is important because the judge always has an interest in seeing how remorseful a defendant is. In fact, a show of remorse can have a significant impact on what sentence the judge imposes.

Imposing sentence. The judge, having heard from all parties who wish to contribute to the hearing, then takes control of the hearing to announce the sentence. The judge will typically speak at some length about the reasons why he or she decided on the sentence imposed

Explaining appeal rights. The sentence having been announced, the judge concludes the hearing by informing the defendant of the right to appeal and the possible waiver of the right to appeal in certain circumstances.

Even after sentencing, you or your loved one may still have some recourse

The Law Office of Jeremy Gordon specializes in post conviction relief. For more information about getting representation for your sentencing hearing, we invite you to contact the Law Offices of Jeremy Gordon. We will zealously represent you during the sentencing phase of your case.