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Almost always, judges 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
Where can the prescribed punishment for crimes be found?
Typically, the law a defendant is charged with violating also
identifies the punishment. For example, a statute identifying specific behavior
as a misdemeanor might go on to state, "For a first-time offense, an offender
may be fined not more than $1,000 or imprisoned for not more than six months,
or both." Another statute might describe particular behavior as a misdemeanor
without specifying the punishment. In this situation, the punishment can be
found in a separate statute that sets forth the punishment either for that particular
misdemeanor, or, in some states, for all misdemeanors.
Do people convicted of the same or similar crimes receive similar
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, 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.
How judges determine 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):