Sentencing

The Actors in the Sentencing Process

Prosecutors

  • Appointed or elected official

  • Responsible for bringing the state’s case against the accused

  • Obligation to seek justice and convict those who are guilty

  • Key player in plea bargaining

Judge

  • Senior officer in a criminal court

  • Many are elected

  • Duties are extensive and vary—must uphold the Constitution

  • Rule on conduct

  • Settle questions made in motions regarding evidence, procedure, etc.

  • Decide guilt in bench trials

  • Sentencing

Probation Staff

  • Conduct presentence investigation (PSI)

    • Interview the involved parties

    • Collection of documents related to the case and/or defendant

    • Suggest sentence per the law according to the circumstances of the crome

Pretrial Release Officer

  • Recommends defendants for pretrial release

Bail and Pretrial Release

Bail

  • Temporary conditional release of an accused person awaiting trial

    • Are not permitted to leave the jurisdiction

    • Refrain from contacting the victim

    • Commit no crimes

  • Meant to ensure that the accused person will return for trial

Pretrial Release

  • Released on own Recognizance (RoR)

    • Unsecured

    • Percentage

    • Third-party

    • Signature bond

  • Supervised release

Bail

  • Bail Reform

    • Manhattan Bail Project—the Vera institute of Justice, New York

      • Provided RoR release for eligible offenders

    • Bail Reform Act of 1966

      • Urged pretrial release for all noncapital cases unless defendant was a flight risk

    • Bail Reform Act of 1984

      • The federal statute that still governs pretrial release and detention in the United States

      • Replaced the 1966 Act and dramatically expanded judicial authority to detain defendants before trial

      • Formalized preventative detention provisions for appropriate candidates

      • Shift from “flight risk only” to “dangerousness”

      • United States v. Salerno (1987)—upheld preventative detention

2025: Bail Reform: Safety vs. Equity

Current Federal Policy

  • Core belief: Cash bail ensures accountability and deters crime

  • Policy action: Executive orders penalizing cashless jurisdictions; push to reinstate bail in D.C

  • Symbolic framing: “No cash, no consequences”—reform equated with chaos

  • Evidence cited: Yolo County study showing 163% crime increase under zero-bail

  • Justice philosophy: Retributive—visible consequences maintain order

Reform Advocates

  • Core belief: Cash bail punishes poverty and undermines fairness

  • Policy action: Support for risk-based release and community supports

  • Symbolic framing: “Freedom before trial”—dignity and equity emphasized

  • Evidence cited: Mixed data; some studies show no rise in crime, others highlight systemic bias

  • Justice philosophy: Restorative—justice should be equitable and healing

Imposing Sentence

Concurrent vs. Consecutive

  • Concurrent: one or more sentences imposed at the same time and served simultaneously

  • Consecutive: one or more sentences imposed at the same time and served one after the other

  • The Effect of Good Time

    • Deduction of time awarded to incarcerated people for good behavior

Determinate Sentencing

  • Offender is sentenced to a definite term

    • Flat-time

    • Mandatory

    • Presumptive

  • 25 states have implemented determinate sentencing reform (as of 2025)

Structured Sentences

  • Regulate sentence length and judicial discretion

  • The first four states to implement presumptive sentencing guidelines were Minnesota, Washington, Pennsylvania, and Florida

Presumptive Sentencing

  • Process in which the legislature sets the penalties for criminal acts

  • About twenty states and the federal government utilize sentencing guidelines

Federal Sentencing Guidelines

Federal Sentencing Guidelines

  • Result of the Comprehensive Crime Control Act (1984) and Sentencing Reform Act (1984)

  • Adopted by Congress and are binding on federal judges until the U.S Supreme Court rules on otherwise

    • Abolished federal parole

    • Created United States Sentencing Commission

    • Judges had to justify deviations from sentencing guidelines

Sentencing Reform Act of 1984

  • Evaluations of Sentencing Guidelines

    • Concerns include complexity, bias, and harshness towards offenders

    • Legality of Sentencing Guidelines

Supervised Release (Instead of Parole)

  • Supervised release is a period of community supervision that begins after a person completes their full federal prison sentence

  • It is not parole, and it does not shorten the prison term

  • Supervised release was created by the Sentencing Reform Act of 1984 to replace federal parole when parole was abolished

  • It is mandatory for many federal offenses

    • Especially:

      • Drug offenses

      • Firearms offenses

      • Sex offenses

      • Many violent offenses

Federal Sentencing Guidelines (continued)

  • Mandatory minimum sentences

    • Purpose is to specify a certain required number of years of incarceration for specific crimes

  • Prominent forms:

    • Legislature may prohibit defendants convicted of certain offenses from being placed on probation

    • Legislature may require certain offenses carry a mandatory term of imprisonment

  • Three-Strikes Laws

    • Require harsher sentences without parole for those convicted of a third or high-order felony

  • Truth-in-Sentencing

    • Laws that require offenders to serve a substantial portion of their imposed sentence and reduces discrepancies in the actual time served in prison

  • Federal incentive grants require 85% of the sentence to be served

How People are Sentenced

  • A recent study of national practices revealed:

    • 75% of those convicted of a felony are sentenced to incarceration in state prison or jail, compared to 56% of those convicted of a misdemeanor

    • 1 in 4 felony convictions and 1 in 3 misdemeanor convictions resulted in probation

    • Murder convictions resulted in the longest median sentence (360 months); the next longest medians were for rape (120 months) and robbery (60 months)

What Happens After the Sentence is Served?

  • 6 in 10 (62%) released prisoners were arrested for a new offense within three years; 7 in 10 (71%) within five years post-release

  • 46% of those released in 2012 returned within 5 years for either a probation violation, parole violation, or new sentence

  • Recidivism rate are lower for older individuals

  • Males (72%) were more likely than females (63%) to be rearrested

Value Systems of Society

  • Excessive Length of Sentences

    • American sentencing practices tied to social, cultural, and political factors of our history

    • American sentences of incarceration are much longer than those found in our industrialized nations

    • Only advanced nation to incarcerate people for minor property crimes

How People are Sentenced (continued)

Legal Factors Affecting Sentencing

  • Severity of offense

  • Offender’s prior record

  • Offender’s use of a weapon

  • Offender’s use of violence

  • Crime committed for money

Nonlegal Factors Affecting Sentencing

  • Contextual factors

  • Social class

  • Gender

  • Age

  • Victim Characteristics

Racial Disparities of Sentencing

  • Black offenders routinely receive harsher sentences than White offenders—even when controlled for criminal history and the seriousness of offenses

  • Conditions that could produce sentencing disparity may occur before the trial takes place

  • This would mean system disparity rather than judicial bias in sentencing outcomes