The sentencing process varies from state to state, as well as state to federal levels. In New York the prosecutor, which will either be the assistant District Attorney or the assistant Attorney General, has the ability to offer a specific sentence they feel is fair for the defendant. The federal level is not a guarantee that a sentence that has been agreed upon will be upheld in court. A lawyer is a great asset when it comes to the sentencing process, because they will know both the federal and state guidelines and help you get a fair sentence.
Unlike state courts, Federal courts will not guarantee a sentence that you have agreed upon with the prosecutor. The judge has final say on the sentence and a lot of factors will be taken into consideration. Some of the factors include the severity of the crime, how they feel your attitude towards the crime is, and your past offenses. Having a lawyer on your side is necessary so they can coach you through the process and help you get the sentence possible.
Whether you make a plea agreement or you are convicted, the process has only begun. As soon as you are convicted or you enter a guilty plea, the judge sends the case to the Federal Department of Probation who then are required to issue a report. This report will tell the judge about the defendant and the details on the crime committed. In this report, both the prosecutor and you will have an opportunity to give information that is relevant to the crime and sentencing that should be place. Your defense lawyer will not be able to comment on the report, but they can assist you on what information to give the judge.
While the judge has final say on your sentence, the law does protect you to an extent. You cannot receive a sentence that is greater than necessary according to Title 18 of the United States Code, Section 3553(a). The judge must take into consideration the nature of the offense and the circumstances that surround it. He or she must also consider your character. The sentence will need to reflect how serious the offense is and respect the law. The judge must try to do everything in his or her power to help protect the public from any further crimes you may commit, including offering you training and education to correct your behavior. Finally, the judge will look at what type of sentences are available for the crime you committed. This means looking at past sentences with defendants who have similar records to you, and have committed similar crimes.
Guidelines were created for judges of Federal cases back in 1987. This was done to make the sentencing process as fair as possible. The guidelines are country wide, so all judges have access to the same information. These guidelines were enforced until 2005, when they no longer were a requirement but rather a way to prevent appeals on harsh sentences. The table created pairs the level of offense (43 different levels) and the criminal history (six different categories), and gives an appropriate sentence based on the zone that the defendant falls into.
Once the judge has determined what the range of the sentence should be, it is his or her responsibility to consider any adjustments to the time. Your plea bargain will come into consideration during this time, but also time you have already served after arrest. However, the judge can also consider adding time to the guidelines due to the motivation behind the crime. The following list are considerations the judge will take into account when it comes to making adjustments to the sentence.
- Physical Injury
- Property Damage
- Weapons Used
- Criminal Purpose
- Conduct of Victim
- Coercion or Duress
- Victim’s Conduct and Characteristics
- Diminished Capacity
- Safety of Public
- Voluntary Admission
- Gang Activity
The sentencing process is extremely complicated with all of the facets that are taken into account. If you have been charged with a felony and are looking at facing Federal courts, you will want to make sure you talk to a criminal defense attorney. They will guide you through the process, as well as give you a good idea of what jail time you could be facing. Finally, they will be the one to help make sure you get the fairest sentence possible for your crime.