A typical felony statute delineates the maximum sentence for the underlying offense. For example, under DC criminal law, an aggravated assault charge carries a maximum penalty of ten years in prison, in addition to a $10,000 fine. But, just because there is a maximum sentence, all is not lost after a conviction. There are methods to help minimize the prison term, or even reduce it to time already served. Criminal attorneys will want to research which of the below procedures are available in their respective jurisdictions.
Often times, when the court sets a sentencing date, it will also order a pre-sentence investigation (PSI), ordinarily to be conducted by a probation officer. The main purpose of the PSI is to help the court determine an appropriate sentence for the criminal defendant. Increasingly, the report will also help frame the issues for the court to consider at the sentencing hearing.
The investigator usually obtains information by interviewing relevant third parties and the defendant, and reviewing documents. Typical third parties include the victim, the defendant's family and friends, employers, school personnel, doctors and therapists. Sometimes the probation officer will speak with the defendant's criminal attorney, the police officers or the investigators. Documents may include the court file, any plea agreement, criminal history, academic records, medical records and anything else the investigator may deem relevant.
The PSI offers various opportunities for the defendant. It is important for the defendant and the criminal lawyer to fully cooperate during the course of the PSI, as often times the court will place great weight on the report generated.
Most jurisdictions employ some form of guidelines for the purpose of alleviating sentencing disparities in criminal cases. While guidelines generally determine sentences based primarily on the conduct associated with the offense and the defendant's criminal history, departures from the guidelines may be allowed in cases involving extenuating circumstances. The most notable basis for departure is when the defendant offers substantial assistance to the authorities; however, there are many others. The criminal lawyer should explore any good faith arguments for a departure below the guideline sentence.
Sworn statements, letters or even testimony of third parties at the sentencing hearing may be helpful to the defendant. Usually family members and close friends provide the best third party statements, because they both know the defendant best and are most likely to make beneficial assertions.
Everything comes together during the sentencing hearing, at which time the defendant and his criminal lawyer will have the opportunity for allocution. Some jurisdictions hold this as an absolute right, and a sentence may be overturned in its absence. Allocution is occasionally used when a defendant pleads guilty to a crime in exchange for a reduced sentence. Literally meaning "to speak out formally," this is the opportunity to employ the PSI report, the sentencing guidelines and any third party statements, to craft an argument for a lesser sentence.
While the above are mostly utilized in felony cases, there are circumstances where the same will apply to a misdemeanor charge (think repeat DUI, for example). Ideally, the lawyer will have spoken to the defendant about all of these procedures before trial. Therefore, if the jury returns a guilty verdict, the defendant acts accordingly and doesn't dig a deeper hole out of which to climb.