Sentencing

Sentencing in State Court

Every State has its own sentencing procedures and guidelines. Some States, through statute, developed a system that mirrors the federal sentencing guidelines. Some States require the trial judge to determine both aggravating factors and mitigating factors, balance the two, and determine a fair and just sentence. Nearly every State includes so-called “sentencing enhancements,” for example, a higher sentence if a firearm was used or there were multiple victims or, in the case of sex crimes, the manner of offense. Many States also proscribe mandatory minimum terms of prison for certain crimes but, like most rules in life, there are exceptions.
 

The Way a Trial Court Views Sentencing

Understanding the way a trial court views sentencing, both as a critical part of the criminal process and the importance of balancing justice with mercy, requires an attorney to do more than rely on the criminal score sheet and a pre-sentence investigation report from Probation. Effective advocacy at sentencing involves presenting the Defendant’s life story in the most compelling manner. A trial judge must see the Defendant for the person they are outside of the criminal case.

In most states, there is no second chance to make this very important first impression. If an attorney has not done their homework, has not effectively placed before the trial court appropriate sentencing materials, and has not presented the strongest case possible for the lowest sentence possible, this can be disastrous for the Defendant. Many trial lawyers overlook the importance of sentencing and so it is imperative that you have a skilled, passionate advocate on your side at sentencing.

Federal Sentencing

In Federal Court, all sentencing is based upon the Sentencing Guidelines established by the United States Sentencing Commission. The Sentencing Guidelines are reviewed and passed by Congress and signed by the President so they have the force and effect of law. The Guidelines, which comprise hundreds and hundreds of pages, and dozens of tables, are complicated enough on their own. They become even more complicated because each day, judges in federal courts across the nation make rulings interpreting the Guidelines. An effective federal sentencing attorney MUST understand the Guidelines, know the law, and be able to use the Guidelines and advocacy to the Defendant’s advantage.

 

Sentencing Guidelines

A Defendant must understand the penalty he or she faces because often the decision of whether to accept a plea will depend on it. The Guidelines can be harsh but they are not mandatory. In 2005, the United States Supreme Court ruled the Guidelines are “advisory” and that federal judges thus have significant latitude in sentencing. In turn, a federal sentencing lawyer who understands how federal sentencing works can use creativity to convince a judge to sentence the Defendant to a lesser sentence than the Guidelines suggest.
 

Pre-Sentence Investigation Report (PSR)

Just as important as knowing the potential exposure is understanding the Pre-Sentence Investigation Report (PSR). This document is compiled by the Probation Department before sentencing and includes significant information about a Defendant’s personal and family history, education, criminal record, employment, and many other parts of a person’s life. The PSR also identifies a recommended sentence based upon the application of the Guidelines to the Defendant’s situation.

An effective sentencing lawyer must know how to read the PSR and know what objections should be raised and how. Failing to do this can have disastrous consequences for the Defendant. Failing to raise objections will impact the Defendant’s right to appeal the sentence afterwards. Many trial lawyers overlook the importance of sentencing and so it is imperative that you have a skilled, passionate advocate on your side at sentencing.