After a defendant is convicted of a criminal offense, whether as the result of a guilty plea or following trial, a sentencing hearing is scheduled.
- In some cases, particularly for minor offenses, the sentencing may occur immediately after the defendant's guilty plea is accepted by the court.
- In most cases a hearing is scheduled to occur on a later date.
Before sentencing, a defendant will usually meet with a probation officer who will interview the defendant, and review information about the case and the defendant's background, and then prepare a report for the court that recommends a sentence. The defendant will have the opportunity to review the report prior to the sentencing hearing, although it is often unavailable until the day before the hearing.
When a defendant is convicted of an offense, possible sentences include:
Supervision: The defendant may be sentenced to a period of formal or informal probation, during which the defendant is expected to comply with rules and requirements imposed by the court or by a probation officer.
Incarceration: A defendant may be sentenced to spend a period of time in jail or prison.
Fines and Assessments: A defendant may be ordered to pay fines, a variety of court assessments, and additional fees for participation in work programs.
Restitution: For crimes involving harm to a victim, the defendant will normally be sentenced to pay restitution to the victim.
The terms of a sentence may be implemented in a variety of ways, specific to the defendant. For example:
A defendant may simply be ordered to pay fines and costs, and then be discharged.
A defendant may be ordered to participate in community service, or to spend time on a work crew that performs tasks such as cleaning up garbage from along a highway.
A defendant may be placed on probation,
A defendant may be placed on house arrest while wearing a tether, an electronic monitoring device that allows a probation officer to verify the defendant's location at specific times.
A defendant may also be sentenced to jail or prison.
In fashioning a sentence for a defendant, courts can combine these various options. For example, a defendant might be sentenced to a period of probation, during which the defendant must pay fines and restitution and perform a specified number of hours of community service.
Sometimes a portion of the defendant's sentence will be suspended. Sentence suspension most often happens with a sentence to jail. For example, a defendant may be scheduled to ninety days in jail, with eighty days of the jail sentence suspended pending completion of probation. The defendant will spend ten days in jail, but if the defendant successfully completes probation the remaining 80 days will be dismissed when the defendant is discharged from probation.
The term "alternative sentence" is sometimes used to describe a court's imposition of a criminal penalty other than incarceration or probation. Depending upon the nature of the sentence, defendants who are serving alternative sentences may be supervised by a probation department.
If successfully completed, alternative sentencing permits defendants to complete their sentences without incarceration. For example
- A court might order that a defendant complete a drug rehabilitation program in lieu of jail, or may sentence a defendant to house arrest while monitored by an electronic tether.
- A defendant who is a minor might be ordered to live in the family home and be placed on a curfew.
- A defendant might be ordered to perform community service, or perform service as part of a county work detail.
Delayed and deferred sentences may also be regarded as alternative sentences.
Following a defendant's conviction, a defendant may be eligible for a delayed sentence, meaning that if the defendant successfully completes a period of probation or court supervision the court will dismiss the case without placing a conviction on the defendant's record.
This type of sentence may also be called a suspended or deferred sentence. Some states may use different terms for delayed sentencing, such as "adjournment in contemplation of dismissal".
Depending upon the state or the procedure followed by the court:
The deferral may occur before the defendant is formally sentenced, with a sentencing hearing held only if the defendant violates the terms of the deferral; or
The deferral may be granted as part of the defendant's sentence, such that if the defendant is later found to violate the terms of the deferral the sentence may be imposed without further hearing.
Defendants should discuss the possibility of deferred sentencing with their criminal defense lawyers. Deferred dispositions and sentences are most often available for younger offenders, for people facing their first conviction for possession of a controlled substance, and in many states for a first offense domestic violence charge.
As part of the sentence in a criminal case, a defendant may be placed on probation. A person on probation may be referred to as a probationer.
Common Conditions of Probation
Although the exact terms of a sentence to probation may vary, a sentence of probation includes both standard terms that are applicable to all defendants, and often to additional terms that are tailored to the individual defendant's circumstances.
Standard Conditions of Probation - Standard probation conditions generally include such requirements as paying all fees and assessments ordered by the court, paying court-ordered restitution, remaining within the state unless given permission to travel, maintain full-time work, school, or a work-school combination, obedience of all laws, not associating with known criminals, and consent to having the probation officer visit the probationer's home and to searches of the probationer's home and person.
Additional Conditions - Where there are additional concerns about a defendant, such as a defendant's having mental health or substance abuse difficulties, additional probation requirements may be imposed on a defendant. For example, a defendant may be required to participate in mental heath treatment or counseling, to participate in a drug treatment program, to attend Alcoholics Anonymous or Narcaholics Anonymous meetings, or may be required to appear for drug testing as instructed by the probation officer.
A defendant on probation will ordinarily meet in person with his probation officer monthly, and at times more frequently. Most probationers are report to appear in person throughout their entire term of probation. In unusual circumstances, a probationer may be permitted to report to probation by mail or by telephone.
Reporting by mail or telephone is most likely to be allowed if a probationer has been on probation for a long time without any significant problems, or where a probationer has been granted permission to attend an out-of-state college, but the probation officer wants to continue to exercise some amount of oversight.
A probationer will normally be required to get permission from the probation officer before moving to another residence or changing jobs.
Sometimes a defendant will be placed on unsupervised or non-reporting probation, where the defendant does not meet with a probation officer. The court imposes conditions of probation as part of the defendant's sentence, and then reviews the defendant's compliance with those conditions at the conclusion of the term of probation.
At the review hearing, a defendant may be required to submit evidence of compliance with the terms of probation, such as by submitting proof of having performed community service work for an approved charity or attendance records from court-ordered addiction recovery group meetings, such as AA meetings. The defendant's criminal history will also be checked for any further criminal activity.
Some defendants who might otherwise be sentenced to jail might qualify for house arrest, pursuant to which they serve part of their sentence at home while subject to a strict schedule and curfew, and travel restrictions.
A probationer on house arrest will normally be allowed to leave home only for school, work, medical appointments, court and probation meetings. If a probationer is not at home at a required time, the probationer may be charged with a probation violation.
Monitoring Movement and Activity
A defendant who is sentenced to house arrest may be required to wear an electronic device or tether that allows the probation department to automatically monitor the defendant's activity or movements.
A typical tether device involves a portable ankle monitor that is strapped to the probationer's ankle with a tamper-proof band, and a base unit that is placed in the probationer's home. The base unit collects information from the ankle unit and transmits it back to the probation department, usually through the probationer's telephone line or through a cellular phone connection.
The ankle monitor may transmit signals to the base unit, allowing the base unit to automatically report the times that the defendant is present at home, as well as automatically reporting a signal that indicates an attempt to tamper with or remove the ankle monitor.
An electronic monitor may include GPS technology, enabling the probation department to track a probationer's movements throughout the day.
Monitoring Alcohol Consumption
If a probationer is sentenced to abstain from the consumption of alcohol, the probationer may be required to wear an ankle or wrist monitor that incorporates SCRAM (Secure Continuous Remote Alcohol Monitoring) technology, that reports back to the probation department any consumption of alcohol.
Alcohol consumption is measured transdermally. A SCRAM monitor will report as tampering the placement of any object between the monitor and the probationer's skin.
When a probationer is found to have violated the terms of probation, the probation officer will consider the defendant's circumstances, along with the nature of the offense and alleged violation. Based upon that assessment, the probation officer may:
Warn the Defendant - For a minor probation violation, the probation officer may opt not to take any formal action and instead warn the defendant that further violations will result in more serious consequences;
Add Additional Conditions - As a sentence to probation often gives the probation officer considerable discretion to add additional reporting requirements, a probation officer may impose additional requirements consistent with the sentence to probation without returning to court; or
Commence Probation Violation Proceedings - Schedule a hearing with the court to have the defendant resentenced on the basis of the probation violation.
Probationers who are arrested for a probation violation, or who are arrested on an unrelated charge while on probation, may be held in custody until the sentencing court holds a bail hearing or probation violation hearing.
Probation Violation Proceedings
A defendant facing a probation violation hearing has the right to be represented by a lawyer, and the right to a hearing on the alleged violation. The defendant may plead guilty to the violation, or may proceed with the hearing and ask the judge to determine if the alleged violation occurred.
Unlike a criminal trial, where the prosecutor must prove the defendant's guilt beyond a reasonable doubt, a probation violation hearing is a probable cause hearing. If the court finds that it is more likely than not that a probation violation occurred, the court may convict the defendant of the probation violation.
Many defendants plead guilty to probation violations, knowing that they are likely to be convicted following a hearing, and hope that their guilty pleas will help convince the court to impose a less serious sanction for the violation.
Consequences of a Probation Violation
Following a probation violation hearing, if a defendant is convicted of the violation the court's options include:
Continuing the Defendant's Probation - Allowing the defendant to continue on probation without changes, despite the violation;
Imposing Suspended Jail Time - If a defendant was sentenced to a suspended period of jail time, the court may require the defendant to serve part of that jail time and continue on probation, or perhaps to serve all of the jail time.
Impose Additional Conditions - The court may impose additional probation conditions upon the defendant to try to get the defendant back on track;
Resentencing - The court may resentence the defendant based upon the probation violation, possibly to a term of jail or, if the underlying charge permits, possibly even to prison.
If a defendant who has violated probation has served the maximum period of incarceration allowed for the conviction charge, following the completion of the term of incarceration the defendant may be discharged from probation as a violator.
When a defendant is sentenced to probation, the term of probation is usually between one and three years. A sentence to probation may be longer, depending upon the seriousness of the offense and state sentencing policies.
For most defendants, state law will define a maximum period of probation, usually about five years, at the conclusion of which a defendant must either be discharged or be resentenced based upon a probation violation.
Some states, such as Michigan ,may impose sentences of life probation for certain drug offenses, pursuant to which a defendant may be placed on an indefinite term of probation.
Extension of Probation
Probationers who commits probation violations, or who are unable to comply with the terms of probation due to personal or financial difficulty, may have their term of probation extended. For example, rather than finding that a probationer has committed a probation violation, a court or probation officer may extend the term of probation to allow a probationer to continue to pay court-ordered fines or restitution.
If probation is extended, the court or probation officer may impose additional conditions upon the probationer, such as additional counseling or drug testing requirements, or more frequent meetings with the probation officer. Most probationers find the extension of probation to be preferable to being resentenced and possibly spending time in jail.
Early Discharge from Probation
Although most probationers must serve their full terms of probation, at times a court or probation officer will consider an early discharge. A defendant who wants an early discharge from probation may benefit from demonstrating:
Completion of the Sentence - The payment in full of all fines, restitution and other court assessments, the completion of any community service or work program requirements, and similar requirements;
Compliance with Probation - A history of compliance with the sentence to probation, including attending all required meetings with the probation officer and compliance with the terms of probation; and
Reasons for Early Discharge - Probation is not convenient, so a probation officer is more likely to respond to a need-based argument as opposed to a probationer's wish to be discharged simply to avoid the inconvenience of reporting. For example, the probationer may be attending an out-of-state college or need to provide care for an ill or elderly relative who lives in a different part of the state or country.
As discharge from probation occurs through the sentencing court, even if a probation officer recommends early discharge the court must still approve that recommendation.
If a sentencing court concludes that a more serious punishment is required than a term of probation, the offender may be sentenced to a period of incarceration, usually to be served in a jail or prison.
A county jail is a facility maintained by a county government, for purposes of holding defendants during pretrial detention and for carrying out sentences of incarceration. Defendants who are sentenced to terms of incarceration of a year or less will normally be committed to the county jail. Defendants who are sentenced to more than one year in prison will normally be committed to the custody of a state department of corrections and serve their sentences in prison.
A defendant who commits a less serious crime, or when the judge concludes that the facts warrant a period of incarceration of a year or less, the defendant will serve that sentence in the county jail.
Some defendants in a county jail may be eligible for a work release program, through which they are released from jail based upon their work schedule so that they may maintain their employment during their incarceration.
Sometimes a court will impose a sentence to a facility other than a jail, such as a drug treatment facility or half-way house.
What If The Judge Thinks That Jail Is Not Enough
If a court is concerned that a defendant may need more supervision or structure than is available in a county jail, but that a sentence to prison would not be appropriate, a state may offer additional options.
For example, most states have boot camp programs, which are intense programs that are conducted in military-style facilities. A defendant sentenced to boot camp will typically spend about ninety days in the program. Participants may be cautioned that if they drop out of the program, or are kicked out due to rule violations, they will be sent to prison.
As boot camp programs can be physically strenuous, some people cannot participate in these programs due to health conditions. Some states reserve boot camp programs for young offenders.