California Crime Punishment

Who determines what punishment a convicted defendant receives?

Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant’s guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

Do people convicted of the same or similar crimes receive similar sentences?

Some state and all federal criminal statutes include “mandatory sentences,” which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures or Congress to their perception of the public’s desire to end judicial leniency and treat alike all people who break the same law.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse. In short, mandatory sentence laws “fit the punishment to the crime,” whereas judges prefer to “fit the punishment to the offender.”

What factors do judges use in determining sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge’s attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called “mitigating” factors):

• the offender has little or no history of criminal conduct
• the offender was an accessory (helped the main offender) to the crime but was not the main actor
• the offender committed the crime when under great personal stress; for example, had lost a job, was late on rent, and had just been in a car wreck, or
• no one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, “aggravating” circumstances can compel a judge to “throw the book at” an offender. A previous record of the same type of offense is the most common aggravating factor. Other aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.

Misdemeanor Sentencing and Punishment

Crimes that are regarded as less serious are referred to as misdemeanors. A misdemeanor usually is punishable by a fine, or by incarceration in a local jail for a period of less than one year. Prosecutors typically do not convene a grand jury to investigate or issue indictments for misdemeanor charges, although the same conduct may give rise to both felony and misdemeanor charges. Misdemeanors are usually charged by a written complaint, or “information.” In some states, poor defendants are not entitled to a court-appointed attorney when charged only with a misdemeanor. The charges may be considered minor, but being accused of a misdemeanor–not to mention being convicted of one–can cause a major disruption in the life of an accused. As in any criminal case, it is essential that a defendant in a misdemeanor prosecution have zealous representation backing him or her up. A person accused of a misdemeanor should seek the help of an experienced criminal lawyer in San Diego.

Misdemeanors sometimes are handled in special courts that have streamlined procedures. For example, in some states, a defendant who wants a jury trial in a misdemeanor case will have to make a special request, and a fee. An experienced San Diego criminal defense attorney will be able to advise you on the procedures followed in your particular jurisdiction.

Misdemeanor Penalties

As a rule, the penalties and other consequences of a misdemeanor conviction are less severe than those of a felony conviction. Not only do the jail sentences imposed tend to be shorter, but the broader consequences are not as dramatic. Usually, a person who has a misdemeanor conviction on his or her record may still vote, serve on a jury, and practice his or her profession. Defense counsel may, in some cases, be able to “plead down” a felony to a misdemeanor, which will not only minimize the punishment imposed, but will lessen the consequences for the future.

Crimes May be Either Misdemeanors or Felonies

Depending upon the circumstances of the case, some crimes may be considered either felonies or misdemeanors. Serious felonies, for example, assault or sexual abuse, often refer to conduct that could be a misdemeanor. If an assault causes severe bodily injury, for example, it is often regarded as a felony. Simple assault that causes no lasting injury, however, is a misdemeanor. Similarly, while drug offenses usually are felonies, possession of a small amount of marijuana is a misdemeanor in many states.

Less serious offenses, such as traffic violations, are often prosecuted as misdemeanors, even though they may be felonies in some circumstances, or the most minor type of crime, infractions, in others. A traffic violation usually is an infraction if there was no collision, no one was hurt, and no property was damaged. The violation becomes a misdemeanor or a felony if someone is injured, or there was destruction of property.

Misdemeanors may not carry the same threat of severe punishment and life-long consequences as felonies, but a misdemeanor conviction can nonetheless be costly, in both financial and personal terms.

Wouldn’t longer sentences mean less overall crime?

Sentence length may or may not correlate with a decrease in crime. Criminal punishment has four basic goals: rehabilitate the offender; restrain the offender from committing further crimes; exact revenge against the offender; and deterring the offender and the general public from criminal behavior. It is unclear if longer sentences actually convince a particular offender not to commit another crime. However, recidivism rates are high, thereby suggesting that the average offender does not “learn his lesson” in prison and refrain from further criminal activity. One thing that does correlate positively with a reduction in criminal activity is increasing age; people under the age of thirty-five years commit most crimes. Therefore, it could be argued that sentences that keep offenders in prison until middle age will reduce overall crime rates.

In addition, more time in prison could allow for more complete rehabilitation because the offender could stay in treatment programs for a longer period of time. Batterers are more likely to change the controlling behavior that leads to domestic abuse if they participate in long-term intensive educational programs. Sex offenders may benefit from multi-level treatment plans spread out over a period of time. In prisons with educational programs, offenders who stay long enough may receive high school or college degrees or learn a trade, which will equip them to lead a productive, law-abiding life. However, some states do not provide adequate resources for these rehabilitation programs.

Longer sentences do not appear to deter the general public from criminal activity. Many times, it is the likelihood of getting caught that deters a person from criminal activity, not the length of the sentence. Many crimes are committed on impulse, and the threat of a lengthy sentence does not even enter the offender’s mind.

Finally, the cost of longer sentences in terms of tax dollars is very high. If sentences are lengthened, new prisons and jails will need to be built to accommodate offenders who would be incarcerated under sentencing guidelines and mandatory minimum sentences.

Felony Sentences & Penalties

The most serious types of crimes are referred to as felonies. The usual definition is that a felony is any crime that may be punished by more than a year’s imprisonment, or death. A crime that has a maximum sentence of a monetary fine, or a short period of confinement in the local jail is not a felony. A statute may not specifically label an offense as a felony, but the punishment defines the offense as a felony. State criminal codes may call a crime an “aggravated” or “gross” misdemeanor, but the offense calls for a sentence of more than one year in the state penal system. Those offenses will be treated as felonies. When crimes charged are more serious, the need for an experienced criminal defense attorney to help a defendant through the process becomes even greater.

Felonies include both violent and non-violent crimes, such as grand theft, embezzlement of large sums of money, first degree assault, or assault that causes severe bodily harm, all degrees of murder, rape, racketeering, large scale fraud, kidnapping, and serious drug crimes.

Felony Procedures

Additionally, special procedures apply when the charge is a felony. If a defendant is too poor to afford to hire a San Diego defense attorney, the court will appoint one to represent him or her, without charge. An attorney is not always appointed for less serious charges. Similarly, the defendant must usually be present for all or most parts of the court process when the charge is a felony. Some state laws require that felonies be charged only upon an indictment handed down by a grand jury, while lesser offenses may be charged by a written “complaint,” or “information.” The rules of evidence in some states provide that a defendant’s or witness’ testimony may be disregarded if he or she has been guilty of a felony, but the rule does not apply if he or she was guilty of only a less serious offense. Most importantly, some states have so-called “three strikes” laws, which provide that a person will be sentenced to life in prison on his or her third felony conviction. Three strikes laws do not apply to misdemeanor convictions.

It is easy to see why a person charged with a felony needs the zealous representation of an experienced San Diego criminal defender.

Substantive Law of Felonies

Designating a crime as a felony may affect other charges, as well as the procedural law. For example, if an accidental death occurs during the commission of a felony, some states classify the crime as murder, while the crime is manslaughter if the death occurs during the commission of a lesser offense. Similarly, the common law defines the crime of burglary as entering another person’s house without their permission, for the purpose of committing a felony in the house. If the purpose for entering was not the commission of a felony, the crime was not burglary. A conspiracy often will be punished more severely if the conspiracy was to commit a felony, instead of conspiracy to commit a misdemeanor.

Consequences of Felony Convictions

If a person is convicted of a felony, he or she may find that his or her rights may be restricted more than those of a person convicted of a misdemeanor. Convicted felons usually serve more time incarcerated, and the conditions of their incarceration generally are more severe. There are many other consequences, as well. In many states, people convicted of felonies may not serve on juries. They may lose their right to vote, or to engage in some professions, like teaching or law. Felons are often prohibited from serving in the military, or owning firearms. In addition, as noted above, many states have so-called “three strikes” laws that require that a person be sentenced to life upon his or her third felony conviction. Experienced defense counsel, will help you not only before and during a trial, but can make sure you may be able to return to a normal life as soon as you can.

The consequences of a felony conviction are severe, and can last for a long time. The punishment is severe, and there are other implications of the conviction that can stay in a person’s life for many years to come. You need to protect your future.