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Reading 11: Sentencing

After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury
verdict, the appropriate legal punishment is determined at the sentencing phase. A number of
different kinds of punishment may be imposed on a convicted criminal defendant, including:

Fines;

Incarceration in jail (shorter-term);

Incarceration in prison (longer-term);

Probation;

A suspended sentence, which takes effect if conditions such as probation are violated;

Payment of restitution to the crime victim;

Community service; and

Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor
misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as
those involving serious felonies, the sentencing judge usually receives input from the prosecutor,
the defense, and the probation department (which prepares recommendations in a "pre-sentence
report").
The sentencing judge will also consider punishments and sentencing ranges identified in
applicable criminal statutes, as well as a number of case-specific factors, including:

The defendant's criminal history, or lack thereof;

The nature of the crime, the manner in which it was committed, and the impact on
victims, i.e. whether injuries resulted;

he defendant's personal, economic, and social circumstances; and

Regret or remorse expressed by the defendant.

Alternative Sentences
Sentences for a criminal conviction can take many forms, and a conviction doesn't always mean
a trip to prison. Alternative sentences can include different combinations of the following: a
suspended sentence, probation, fines, restitution, community service and deferred
adjudication/pretrial diversion. Judges typically determine whether to impose alternative
sentences based on the type and severity of the crime, the age of the defendant, the defendant's
criminal history, the effect of the crime on the victims, and the defendant's remorse.

1. Suspended Sentences
As an alternative to imprisonment, a judge can suspend a prison or jail sentence. This is
typically used in cases involving less serious crimes or for first-time offenders. There are
several different kinds of suspended sentences.
First, a judge can either suspend a sentence before the sentence is imposed, or before it is
executed. Suspending a sentence prior to the imposition means that a judge refrains from

PMIH UNTAN-Bahasa Inggeris Hukum@2014

handing down a sentence at all. Suspending a sentence prior to the execution means that a
judge has decided on a sentence, but has refrained from actually carrying it out.
Suspended sentences can also be unconditional or conditional. An unconditional suspended
sentence simply suspends the sentence with no strings attached. The conviction is still a matter of
public record, however.
If the suspended sentence is conditional, the judge can hold off from either imposing or
executing the punishment for as long as the defendant fulfills the condition of the suspension.
Common conditions may include not committing other crimes or enrolling in a substance
abuse program. If a defendant violates the terms of a conditional suspension, the judge can
then either impose or execute a sentence.
Sentences Suspended Prior to the Imposition
When a judge suspends the imposition of a sentence, he has essentially declined to hand down
a sentence, but reserved the right to do so in the future.
Most criminal courts have the inherent power to suspend a sentence prior to its imposition as
long as the suspension is for a specific amount of time and that period of time is reasonable.
Not all jurisdictions recognize the inherent power of a court to suspend a sentence, however.
In these jurisdictions, there must be a law specifically authorizing suspended sentences before
a judge can suspend a sentence.
Judges may also lack the ability to suspend a sentence before its imposition if a mandatory
sentencing law applies to the criminal act in question. If this is the case, the court's hands are tied
and the judge must impose the sentence required by statute.
Finally, a emit that has suspended the imposition of a sentence can revoke the suspension and
impose any sentence that was available to it at the time of conviction. This is usually the case in
conditional suspended sentences where the defendant has violated a condition of the suspension. A
judge can review the issue and decide whether or not to revoke the suspension and, if revoked,
what sentence to impose.
Sentences Suspended Prior to the Execution
In addition to declining to impose a sentence, judges can suspend sentences before they go
into effect. This means that, although a sentence is in place, the defendant does not have to
serve it immediately if at all.
As in the case of sentences suspended before the imposition, most criminal courts enjoy the
inherent power to suspend sentences prior to their execution. Just like with sentences
suspended prior to the imposition, however, not every jurisdiction recognizes a court's
inherent authority to do this. Sometimes there has to be a law on the books that allows judges
to suspend execution of a sentence.
Some jurisdictions also require judges to suspend sentences immediately after they are handed
down.Mandatory sentencing provisions also restrict the ability of judges to suspend the
execution of a sentence just as they restrict a judge's power to suspend the imposition of a
sentence.
Sentences suspended prior to execution can also be either conditional or nonconditional. If the
suspended sentence is conditional, the judge can revoke the suspension if the defendant violates
any of the conditions. At that point, the sentence would go into effect just as if the judge hadn't
ever suspended the execution.

2. Probation
Instead of sentencing a defendant to a prison term, a judge may choose to sentence a defendant
to probation. Probation releases a defendant back into the community, but the defendant does
not have the same level of freedom as a normal citizen. Probation comes with conditions that
restrict a probationer's behavior, and if the probationer violates one of those conditions, the court
may revoke or modify the probation.
Courts typically grant probation for first-time or low-risk offenders. Statutes determine when
probation is possible, but it is up to the sentencing judge to determine whether or not to actually
grant probation.
Even though sentencing judges have this discretion, they must still stay within the statutory
limits when granting probation. For example, a judge cannot impose probation for a period
longer than the maximum sentence prescribed by statute.
Probation has three primary goals:

To rehabilitate the defendant

To protect society from further criminal conduct by the defendant

To protect the rights of the victims

Once a judge has granted probation, the matter moves into the jurisdiction of probation
officers, who monitor the probationer's compliance with the terms of the probation.

3. Fines
Most people have had to pay a fine at some point usually in the form of a speeding or
parking ticket.
People convicted of more serious crimes also pay fines, although the amount of the fine is
usually much more substantial than a fine for a parking or speeding ticket. The goal of imposing
a fme is to punish the offender, help compensate the state for the offense, and deter any future
criminal acts.
After someone is convicted of a crime, the sentencing judge has the discretion to impose a fine
on the convicted defendant and to set the amount of the fine. This fine can take the place of a
prison sentence or probation, or the judge can sentence a defendant to a fine in conjunction with
a period of time behind bars or on probation.
The decision to levy a fine in lieu of prison time or probation depends on the type and severity of
the crime, and whether or not the criminal statute in question carries any minimum sentencing
requirements. Judges typically impose fines with no accompanying prison or probation time as
an alternative sentence for minor crimes or first-time offenses. A fine is still a criminal sentence,
however, and the defendant will have a criminal history even if they only pay a fme and do not
go to prison or enter into probation.
The defendant pays the fine to the government, which differs from a restitution order where
the defendant pays money to the victims of the crime.

4.

Restitution
Restitution involves a payment by the perpetrator of a crime to the victims of that
crime. This payment is meant to make the victims whole and restore them financially to the
point they were at prior to the commission of the crime.
Restitution differs from a fine in that restitution is paid to the victims of a crime to compensate
them for the injuries they suffered that were directly related to the crime, whereas a fine is paid

to the government strictly as a punitive measure. While a government can be a victim of a

crime for restitution purposes, a fine is not intended to compensate the government for its
injuries. Instead, a fine is meant only to punish an offender and deter future criminal behavior.
For example, if a jury convicts a defendant of stealing government property, a judge could
order the defendant to pay the government restitution in the amount of the value of the piece of
property. In addition, the judge could also fine the defendant in order to punish and deter. The
two payments are separate one is to compensate the government for its loss and the other is
to punish the perpetrator.
Judges typically order restitution as a condition of another sentence such as incarceration or
probation, although it is possible to receive a sentence of restitution on its own.
States and the federal government have statutes that determine who can receive
restitution and how judges can determine the amount that defendants will have to pay. For
more information on how restitution works where you live, contact an attorney in your
local jurisdiction.

5.

Court Ordered Community Service

In this type of alternative sentence, a judge orders a criminal offender to perform work on
behalf of the community in exchange for a complete or partial reduction of fines and/or
incarceration. Court ordered community service often accompanies some other form of
alternative sentence such as suspended sentences, probation, fines, deferred adjudication
or pretrial diversion.
The theory behind court ordered community service is that mandating minor offenders to
perform community service offers more benefit to society than incarceration of those
offenders. The community benefits from the work that the offender performs and avoids the
cost of incarceration while the offender benefits from a lesser sentence and, it is hoped, is
rehabilitated, educated and enriched through the work they perform.
Court ordered community service is often, but not always, related to the type of offense that they
were charged with. For example, a person convicted of Driving Under the Influence (DUI) may
have to give speeches to schoolchildren about the dangers of drunk driving.
A judge may sometimes allow an offender to choose the type of community service they
wish to do. If this is the case, a government or independent agency must verify that the
offender completed the community service. Otherwise, a judge will order a specific type of
service that is verified through the organization where the offender performs the work.
Each state has specific rules and procedures for court ordered community service, so be
sure to check on the law in your area.

6. Deferred Adjudication / Pre-trial Diversion

Certain types of offenses and offenders may qualify for programs that result in the dismissal of
the case against the defendant upon completion of specified conditions. These programs go by
several different names, but they all remove the defendant from the ordinary channels of
prosecution so that the defendant may complete certain conditions. Once the defendant meets
the conditions, either the prosecutor or the court will dismiss the charges.
The goal of this sort of program is to allow the defendant time to rehabilitate themselves
and demonstrate that they are capable of behaving responsibly. For so doing, the state
rewards the defendant by dismissing the charges.
These programs are typically used for drug or domestic offenses, or for first-time

offenders. The conditions imposed typically include some form of counseling and/or probation,
and require the defendant to demonstrate good conduct throughout the program. There are two
types of these kinds of programs: those that require the defendant to first plead guilty to the
charge and those that do not. The former type is usually known as deferred adjudication, while
the latter category is generally known as pretrial diversion.
Deferred adjudication begins after a defendant has pled guilty or nolo contendere. In this
way, it resembles probation, but in most other respects a deferred adjudication proceeds
similarly to a pretrial diversion. In addition to "deferred adjudication", this sort of program
is also known as a "stay of adjudication".
Even though the defendant pleads guilty or nolo contendere in a deferred adjudication, the court
will not enter a judgment of guilt. Instead, like a pretrial diversion, the court will lay out a
number of conditions that the defendant must meet. If the defendant meets the conditions, the
charges are dismissed and the defendant will not have a record of conviction.
If, on the other hand, the defendant does not satisfy the conditions, the court will enter a
judgment and determine a punishment. At this point, the defendant's record will show a
conviction.
The main difference between a deferred adjudication and a pretrial diversion is that, in a
deferred adjudication, a defendant must first plead guilty or nolo contendere. This means
that, if the defendant does not fulfill the conditions of the deferred adjudication, the state
does not have to put the defendant back on trial for the crime. Instead, the court simply
enters its judgment and sentence.
In a pretrial diversion, if the defendant fails to meet the conditions of the program, the state
must then place the defendant on trial since there was no prior guilty plea.

Reading12: Appeals and Post-Conviction Remedies

A person who has been convicted of a crime has a number of options for seeking additional
relief from the criminal justice system including filing an appeal to have a criminal
_
conviction overturned or sentence reduced Learn about post-conviction remedies available to
people who have been convicted of a crime:
An individual who has been convicted of a crime may "appeal" his or her caselasking a higher
court to review certain aspects of the case for legal error, as to either the conviction itself or
the sentence imposed.
The Appeal Process: "Briefs" and the "Record"
In an appeal, the defendant (now called the "appellant") argues thatt ebased on key legal
mistakes which affected the jury's decision and/or the sentence imposed, the case should be
dismissed or the appellant should be re-tried or re-sentenced.
In considering an appeal, the court reviewing the case looks only at the "record" of the
proceedings in the lower court, and does not consider any new evidence. The record is made up
of the court reporter's transcripts of everything said in court, whether by the judge, the
attorneys, or witnesses. Anything. else admitted into evidence, such as documents or objects,
also becomes part of the record.
tin reaching a decision on the appeal, the higher court ("appellate court") looks to this record
and to the written "briefs" filed by both sides of the appeal. For example, an appellant
challenging a conviction or sentence files an opening brief, arguing how and why the conviction
or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to
illustrate why the conviction or sentence should be upheld. The appellant typically has an
opportunity to file a second brief in response to the government's position, and the appellate
court may hear oral arguments from each side before reaching a decision on the appeal. I

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a
criminal conviction or sentence. It is important to note that, although it may take a number of
months for an appeal to be heard and decided, most states require an appellant to notify the courts
and the government of the intent to appeal very soon after a conviction or sentence.

Reading 12: Juvenile Court Procedure

The procedure and organization of the juvenile court system is different from theaciult system.
After committing an offense, juveniles are detained rather than arrested. Next, a petition is
drawn up which outlines the jurisdiction authority of the juvenile court over the offense and
detained individuals, gives notice for the reason for the court appearance, serves as notice to the
minor's family, and also is the official charging document.
Once in court,lthe juvenile case is adjudicated, and a disposition is handed down. Records from
juvenile courts are sealed documents, unlike adult records which are accessible by anyone
under the Freedom of Information Act!Like diversionAhis measure is designed to protect the
juvenile so that one mistake does not follow the juvenile for lift, twefule records may also be
expunged upon the juvenile's eighteenth birthdaprovided the juvenile has met certain
conditions, such as good behavior. Juvenile court procedure is also far less formal than adult
court procedure.
The disposition of a juvenile case is based on the least detrimental al ative, so the legacy
of parens patriae is still evident. However, one major controversy irvenile dispositions is the
use of indeterminate sentencing, which allows a judge to set a maximum sentence/In such
cases, juveniles are monitored during their sentences and are released only when the judge is
satisfied that they have been rehabilitated or when the maximum time has been served. Critics
argue that this arrangement allows the judge too much discretion and is, therefore, not the least
detrimental punishment.
Juvenile courts are typically organized in one of three ways:
1) as a separate entity
2) as part of a lower court, such as a city court or district court
3) as part of a higher court, such as a circuit court or a superior court
The organization model varies state by state, and some states, for example, Alabama, allow
each county and city jurisdiction to decide which is the best method of organization. Where the
juvenile court sits has profound implications for the juvenile process.