Crimes are punished according to the seriousness of the act and culpability of the offender.
- Lawmakers define crimes and their punishments.
- Juries (or sometimes judges) decide issues of guilt.
- And judges sentence the offender based on the limits set in the law.
Defining Crime and Punishment
Lawmakers (legislators) define crimes and their punishments, and each state and the federal government can penalize crimes differently. While many crimes have similar elements, the penalties vary by state. Stealing a $1,000 cellphone might be a misdemeanor in one state but a felony in the next state over.
The law that applies usually depends on where the crime was committed—stealing a car in Ohio will mean prosecution under Ohio’s laws. If the crime took place over the internet, in multiple states, or on federal property, federal criminal charges are possible.
Misdemeanors and Felonies
Both the federal system and the states divide crimes into two broad categories—misdemeanors and felonies. Misdemeanors tend to be less serious crimes—such as petty theft, simple assault, and careless driving—and carry less serious punishments. In most states, misdemeanors carry fines and local jail sentences of up to one year (some states allow two- or three-year misdemeanor sentences).
By contrast, felonies generally involve stiff fines and incarceration for more than a year and up to life, and the defendant will serve this time in prison. Examples of felonies include grand theft, aggravated assault, and vehicular homicide. In the federal system and around half the states, the death penalty is reserved for the most heinous crimes, usually for first-degree murder.
Setting the Punishment for a Crime
When lawmakers define crimes and their punishments, the law (statute) will specify what conduct is prohibited and the maximum punishment allowed for a conviction. For instance, a statute might read:
Whoever takes property from a person using force or threat of force is guilty of robbery and may be punished by incarceration of up to 25 years, a fine of up to $50,000, or both.
If a defendant is convicted under this statute, the judge can impose a punishment within the range permitted in the law—here, up to 25 years’ incarceration and a $50,000 fine.
Imposing the Punishment
The law generally states a maximum punishment, such as "up to 25 years in prison." Depending on the state’s sentencing laws, the judge often has the authority to impose any punishment that doesn’t exceed the maximum—whether it’s 5 years, 10 years, or 25 years’ incarceration in this example. (Some crimes have mandatory minimum sentences as well.) Besides incarceration, the law provides judges with several other tools when meting out punishment.
Types of Punishment
Here’s a rundown of the most common punishments.
Incarceration. Incarceration means time in a local jail or a state or federal prison. Local jails hold pretrial defendants and convicted misdemeanor defendants serving less than one year. Prisons generally hold convicted felony defendants for incarceration terms lasting more than one year and up to life or death.
Fines. Many criminal punishments carry fines, which is money paid to the government (often a city, county, or state).
Diversion. A prosecutor or judge might offer a defendant a chance to avoid a criminal record or conviction by participating in diversion or a deferred sentencing program. If the defendant successfully completes the program, the prosecutor or judge may dismiss the charges. These programs are typically offered to first-time offenders as a way to avoid the consequences of a criminal record, which can make it difficult to get a job or housing.
Probation. For some crimes, a judge will convict the defendant and hand down a sentence but hold off on sending the defendant to jail or prison. Instead, the judge suspends the sentence and places the defendant on probation. Probation allows a defendant the chance to avoid all or most of their sentenced incarceration time and instead serve their time in the community. The defendant’s jail or prison sentence remains suspended only if they abide by their probation terms, such as meeting with a probation officer, remaining crime-free, or abstaining from alcohol and drug use. Failure to follow the conditions of probation can result in a revocation hearing and a return to incarceration.
Restitution. Judges can order the offender to pay money to victims to compensate them for their losses or injuries. Unlike fines that are paid to the government, restitution payments go directly to the victim.
Community service. A judge might order community service as a condition of probation or as part of the sentence. Court-ordered community service is common in low-level property crimes and for first-time offenders. It allows offenders to see first-hand the damage done to the community by their actions.
Factors Judges Consider in Sentencing
When deciding what punishment to impose, the judge will consider the seriousness of the crime, the defendant’s criminal history (past convictions), the circumstances of the crime, harm caused to the victim, and whether the defendant shows remorse or an ability to rehabilitate. Because the judge has considerable discretion, defendants convicted of the same crime can end up with very different punishments.
Let's examine different sentencing scenarios for three defendants convicted of grand theft auto, punishable (in this example) by up to 10 years in prison.
Defendant 1. Here we have a first-time young adult offender who shows remorse and otherwise has a good track record. The judge accepts the defendant’s guilty plea but holds off on sentencing. If the defendant completes community service, pays restitution to the victim, and attends life skills classes, the judge will enter a misdemeanor conviction instead of a felony.
Defendant 2. Now let’s say this crime is the offender’s third run-in with the law. His prior convictions include shoplifting and joyriding, both misdemeanors. The judge sentences the offender to three years’ incarceration but holds off on sending him to prison. Instead, the offender must spend 180 days in jail and then complete the other terms of his probation (community service, restitution, and counseling). Successful completion will still mean a felony conviction but no prison time.
Defendant 3. Finally, we have a repeat felony offender who stole the car from an elderly victim. This offense occurred only a month after he got out of prison. The offender shows no remorse and always seems to find his way back to a dangerous crowd. This time the judge sentences the offender to six years in prison.
Talk to a Lawyer
Crimes and their punishments are more complicated than they might seem. If you're facing criminal charges, it's best to speak to a criminal defense attorney before making any decisions that could impact your case. A lawyer can help you understand the complex criminal justice process, protect your constitutional rights, and defend you at trial if necessary.