Monday, November 7, 2011

Who Decides the Sentence?

So who makes the ultimate determination at sentencing? How much say does the ADA have? What about the victim? The judge?

As it is with all legal questions - it depends.

There are different stages of a proceeding and all have different rules. Find a guide to these stages here.

1) Pre-indictment

Prior to a grand jury indicting a defendant, a defendant can only plead guilty with the consent of the DA's office. If we consent to a guilty plea to a reduced charge prior to indictment, we can also insist on the defendant's sentence or leave it up to the judge.

If the defendant doesn't like our conditions, we do not have to allow the plea. Also, the court does not have to accept the plea if they disagree with our sentence. If it remains open, that means the judge decides what the ultimate sentence is. The advantage of pre-indictment pleas for a defendant is their is an ability to control which judge accepts the plea and will impose sentence.

2) Post-indictment

A defendant can plead guilty at any time to all the charges once he is indicted. If this happens, the judge has the sole discretion in sentencing.

If we offer the defendant a plea to a lesser charge following the indictment, we can attach sentencing conditions to the plea or leave it open as described above.

3) Guilty Verdict

Following a guilty verdict after trial, the judge is the sole decider of the defendant's fate. We can no longer attach any conditions.

In any scenario, the victim is allowed to address the court and let the judge know their wishes. A victim can speak in open court or submit a letter. How much impact that has on sentence is left up to each individual judge. In the majority of my cases, victims rarely want to speak at sentencing. When they do, it usually has a strong impact on the judge's decision.

The DA's office, defense attorney, and defendant also have the opportunity to speak, if they wish and address any topics related to sentencing.

An interesting note - the district attorney's office does not need the victim's consent to offer a reduced plea. It is part of our discretion. In practice, my office always discusses this situation with any victim and seeks their opinion.

Do you think a victim should have more control over what happens? Is it fair to leave it up to one judge as opposed to a panel? What are the ramifications of allowing the prosecutor and defense attorney to select the judge who accepts a pre-indictment plea?


  1. Having submitted a victim impact statement (along with several of my family members) after a murder trial with guilty verdicts, I am immeasurably grateful that victims' statements ARE taken into account. In my situation, the Judge's sentence was exactly what we were looking for so we had no issues but I wouldn't be opposed to victims having more impact on the sentencing process. I'm all for victims having more rights. It is very empowering and it does help to be able to tell the person who is going to sentence the defendant exactly how the crime has affected your life.

    Great post!

  2. Victim's rights vs. defendant's rights. That is a tricky area and will be the subject of a future post. Defendant's are protected by the U.S. Constitution and the victims do not have much.

    A victim must take time off work for every court appearance (usually vacation or unpaid), tell their tale to the police, the district attorney, at a felony hearing, at the grand jury, and at trial where they are subjected to rigorous cross-examination. It is difficult to be a victim and come forward, but we cannot prosecute without them.

  3. Indeed! Can't wait for that post. I had to go a month without work/pay during the trial to testify and be a part of a murder trial. Luckily I was between jobs and my new employer was willing to allow me to start work a month later but it still set me back and many of my family members and the family members of the other victims were in a real bind with all the time they had to take from work and from their normal lives to ensure that they could all testify and do their part to help the prosecutors.