For each crime, state and federal legislatures define the permissible sanction range. Depending on the state and offense, a judge or jury may be responsible for sentencing.
In making sentencing decisions, the charge brought by the prosecutor defines the sentencing options. Plea bargaining implies a suggested sentence, but the ultimate decision rests with the judge, who may prescribe any sentence consistent with the legislative sanction range. However, a jury must determine sentencing in capital cases.
Misdemeanor sentences include probation, community service, fines, and incarceration. Probation is a period of supervision by the corrections system. Probation may be active or informal. Community service is meant to minimize the negative effects of a sanction while giving back to the community. Fines are used primarily for traffic violations and petty misdemeanors. One issue is that not all people have the same ability to pay. Petty misdemeanors may include up to 6 months in jail, and serious misdemeanors may include 6 months to 1 year in jail. A judge may suspend the jail time, and may also impose consecutive misdemeanor sentences.
Felony sentences include community-based sanctions, probation, economic sanctions, incarceration, and capital punishment. Community-based sanctions involve placement in a live-in facility and are meant to provide treatment and structure for offenders. Probation is often used for conviction of property or drug offenses. Fewer convicted felons have received probation in recent years. Economic sanctions are often used for crimes that have a profit motive, and may include fines and forfeiture of property tied to profits from criminal activity. Incarceration may include shock incarceration, which is a short period of incarceration followed by an extended probation period designed to be a specific deterrence. Felony incarceration may range from one year to life. The average prison sentence is 57 months. Capital punishment has been a part of the sentencing scheme since the nation's founding. It requires a bifurcated hearing process in which juries must consider aggravating and mitigating circumstances. Jury verdicts must be unanimous in capital cases.
In sentence determination, prosecutors make the decision whether to prosecute and what crimes the defendant is charged with, which gives the prosecutor an advantage during plea bargaining. Judges have a choice among legislatively defined sentences, may suspend the sentence, and may choose between concurrent and consecutive sentences.
Sentencing strategies include indeterminate sentencing, determinate sentencing, structured sentencing, and mandatory sentencing. Indeterminate sentencing specifies minimum and maximum periods of confinement. The judge imposes the sentence, and actual time served is determined by the parole board. Determinate sentencing provides for a specific amount of time to be served and abolishes discretionary parole. Structured sentencing follows guidelines and considers the present offense and the offender's prior criminal history. Mandatory sentencing assures that certain offenders will receive a specified prison term.
There is concern regarding disproportionate sentencing for minorities and women. Current trends in sentencing include a movement toward determinate sentencing, sentencing guidelines, increased punitiveness, truth in sentencing, and a decrease in capital punishment.