Sentence (law)

Criminal procedure
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Sentencing
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Related areas of law
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1 US courts. 2 Not in English/Welsh courts. 3 Scottish courts. 4 English/Welsh courts. 5 Canadian courts. 6 UK courts.
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In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. Those imprisoned for multiple crimes, will serve a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences), a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence), or somewhere in between, sometimes subject to a cap. If a sentence gets reduced to a less harsh punishment, then the sentence is said to have been "mitigated" or "commuted". Rarely (depending on circumstances) murder charges are "mitigated" and reduced to manslaughter charges. However, in certain legal systems, a defendant may be punished beyond the terms of the sentence, e.g. social stigma, loss of governmental benefits, or, collectively, the collateral consequences of criminal charges.

Statutes often specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given a certain set of offense and offender characteristics. However, in some jurisdictions, prosecutors have great influence over the punishments actually handed down, by virtue of their discretion to decide what offenses to charge the offender with and what facts they will seek to prove or to ask the defendant to stipulate to in a plea agreement. It has been argued that legislators have an incentive to enact tougher sentences than even they would like to see applied to the typical defendant, since they recognize that the blame for an inadequate sentencing range to handle a particular egregious crime would fall upon legislators, but the blame for excessive punishments would fall upon prosecutors.^[1]

Sentencing law sometimes includes "cliffs" that result in much stiffer penalties when certain facts apply. For instance, an armed career criminal or habitual offender law may subject a defendant to a significant increase in his sentence if he commits a third offense of a certain kind. This makes it difficult for fine gradations in punishments to be achieved.

History

The first use of this word with this meaning was in Roman law, where it indicated the opinion of a jurist on a given question, expressed in written or in oral responsa. It was also the opinion of senators (that was translated into the senatus consultus). It finally was also the decision of the judging organ (both in civil and in penal trials), as well as the decision of the Arbiters (in arbitration).

In modern Latin systems the sentence is mainly the final act of any procedure in which a judge, or more generally an organ is called to express his evaluation, therefore it can be issued practically in any field of law requiring a function of evaluation of something by an organ.

Classification

Sentences are variously classified depending on

• the legal field, or kind of action, or system it refers to:
  • civil, penal, administrative, canon, ..., sentence.
  • sentences of mere clearance, of condemnation, of constitution.
• the issuing organ (typically a monocratic judge or a court, or other figures that receive a legitimation by the system).
• the jurisdiction and the legal competence: single judges, courts, tribunals, appeals, supreme courts, constitutional courts, etc., meant as the various degrees of judgment and appeal.
• the content:
  • partial, cautelar, interlocutory, preliminar (sententia instructoria), definitive sentences.
  • sentence of absolutio (discharge) or condemnatio (briefly damnatio, also for other meanings - condemnation). The sentences of condemnation are also classified by the penalty they determine:
    • sentence of reclusion,
    • sentence of fee,
    • sententia agendi, sentence that impose a determined action (or a series of action) as a penalty for the illegal act. This kind of sentence became better developed and remained in wider use in common law systems.

Philosophies

The sentence meted out depends on the philosophical principle used by the court and what the legal system regards as the purpose of punishment. The most common purposes of sentencing are:

• Retribution
• Deterrence
• Denunciation
• Incapacitation
• Rehabilitation

Theory	Aim of theory	Suitable punishment
Retribution	Punishment imposed only on ground that an offense has been committed	Tariff sentences Sentence must be proportionate to the crime
Deterrence	To the individual - the individual is deterred through fear of further punishment. To the general public - Potential offenders warned as to likely punishment	Prison Sentence Heavy Fine Long sentence as a example to others
Rehabilitation	To reform the offender's behavior	Individualized sentences Community service orders
Incapacitation - Protection of the Public	Offender is made incapable of committing further crime to protect society at large from crime	Long prison sentence Electronic tagging Banning orders
Reparation	Repayment to victim(s) or to community	Compensation Unpaid work Reparation Schemes
Denunciation	Society expressing its disapproval reinforcing moral boundaries	Reflects blameworthiness of offense

Process

Usually the sentence comes after a process in which the deciding organ is put in condition to evaluate whether the analysed conduct complies or not with the legal systems, and eventually which aspects of the conduct might regard which laws. Depending on respective systems, the phases that precede the sentence may vary relevantly and the sentence can be resisted (by both parties) up to a given degree of appeal. The sentence issued by the Appeal court of highest admitted degree immediately becomes the definitive sentence, as well as the sentence issued in minor degrees that is not resisted by the condemned or by the accusator (or is not resisted within a given time). The sentence usually has to be rendered of public domain (publicatio) and in most systems it has to be accompanied by the reasons for its content (a sort of story of the juridical reflections and evaluations that the judging organ used to produce it).

A sentence (even a definitive one) can be annulled in some given cases, that many systems usually pre-determine. The most frequent case is related to irregularities found ex-post in the procedure, the most éclatant is perhaps in penal cases, when a relevant (often discharging) proof is discovered after the definitive sentence.

In most systems the definitive sentence is unique, in the precise sense that no one can be judged more than once for the same action (apart, obviously, from appeal resistance).

Sentences are in many systems a source of law, as an authoritative interpretation of the law in front of concrete cases, thus quite as an extension of the ordinary formal documental system.

The sentence is generally issued by the judge in the name of (or on the behalf of) the superior authority of the state.

See also

• Criminal sentencing in Canada
• English criminal law#Sentencing
• Criminal sentencing in the United States
• Criminal costs
• Incapacitation (penology)
• Sentencing disparity

References

1. ^ William J. Stuntz (Jun., 2004), Plea Bargaining and Criminal Law's Disappearing Shadow, 117, Harvard Law Review, pp. 2548–2569 

External links

• Sentencing (Directgov, England and Wales)
• How sentencing works: You be the Judge