The term sentence in law refers to punishment that was actually ordered (or could be ordered) by a trial court in a criminal procedure. … The sentence can generally involve a decree of imprisonment, a fine, and/or other punishments against a defendant convicted of a crime.
Sentence, in law, formal judgment of a convicted defendant in a criminal case setting the punishment to be meted out. In civil cases the terms decision, award, and judgment are used.
Various types of sentences can be given. In cumulative sentences a defendant convicted on several counts receives a separate sentence for each count; such sentences may run concurrently or consecutively. A sentence may also be for an unspecified period, with the intention of allowing the prisoner to be released on good behaviour at an earlier time than would be possible under a specific sentence. A sentence may also stipulate the conditions under which the prisoner is to be released when he has served his time; for example, he may be released on probation or be discharged absolutely or conditionally.
The most common sentences are:
- absolute discharge;
- conditional discharge;
- suspended sentence;
- imprisonment (jail);
- intermittent sentence (“weekends”);
- conditional sentence (”house arrest”).
An absolute discharge is the lowest-level adult sentence that an offender can get.
If an offender gets an absolute discharge, a finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case that day. They don’t have to come to court again or check in with a probation officer.
An absolute discharge will stay on an offender’s criminal record for one year after the date they received the discharge. The offender doesn’t have to apply for a pardon for the discharge to be removed from their record.
A conditional discharge is similar to an absolute discharge because a finding of guilt is made, but no conviction is registered. What makes it different from an absolute discharge is that there are conditions that the offender must follow. The conditions always come in a probation order that can be in effect from one to three years.
A conditional discharge stays on an offender’s criminal record for three years after the completion of the probation order. Like an absolute discharge, the offender doesn’t have to apply for a pardon for the discharge to be removed from his/her record.
Like a conditional discharge, a suspended sentence involves following conditions in a probation order for a period of one to three years.
The main difference between a conditional discharge and a suspended sentence is that an offender who gets a suspended sentence has a conviction registered against them. This means that the offender who gets a suspended sentence will have a criminal record and will have to apply for a pardon to have the conviction removed from their record.
Probation is a court order to do (or not do) certain things for a period of time. It is usually called a probation order.
An offender who gets a conditional discharge or a suspended sentence will always have a probation order that they must follow. A probation order can also be combined with a fine, a conditional sentence, intermittent imprisonment, or imprisonment. The maximum length of a probation order is three years. In many cases they are one or two years long.
Every probation order will have the following conditions:
- keep the peace and be of good behaviour;
- appear in court when ordered by the court;
- tell the court or probation officer about any change of name, address or job.
Other conditions sometimes included as part of a probation order are:
- report to a probation officer (sometimes every week or month);
- not buy, carry, or drink alcohol;
- not have or use drugs that aren’t prescribed by a doctor;
- not have or carry any weapons (e.g. knives etc.);
- perform community service;
- stay away from a certain person or persons, and not go to their house or where they work;
- not to call, text message or email a certain person or persons;
- give money back to a victim;
- go to counselling or rehabilitation.
In a lot of probation orders, the judge will make the offender report to a probation officer. A probation officer is not the same as a police officer, but they do have the power to charge an offender with a criminal offence if they break their probation conditions.
If an offender has a condition to go to counselling or do community service, or if the judge feels they need supervision, the judge will usually make the offender report to a probation officer. Reporting is usually every week or every month, but it can be more frequent or less often. Sometimes (usually after the first reporting date) the judge leaves it up to the probation officer to decide how often the offender should report.
A fine is an amount of money that an offender must pay to the court. It is different from restitution or a charitable donation.
If an offender is given a fine, they will have a conviction registered against them and will have to apply for a pardon to have the fine removed from their record.
A fine can be given instead of, or in addition to, imprisonment, a conditional sentence, or an intermittent sentence. This is true unless the criminal offence requires minimum jail time. If this is the case, a fine can’t be given instead of jail, but can still be given in addition to the minimum jail time.
A fine cannot be given on top of an absolute discharge, a conditional discharge, or a suspended sentence.
Certain criminal offences, like impaired driving or driving over 80, have minimum fines.
If a judge is going to give the offender a fine, and the criminal offence does not have a minimum fine, the judge has to decide whether the offender can actually pay a fine. This usually means that the judge will ask the offender questions such as: Are you working? Do you have children to support? Does your spouse work?
If an offender can’t pay their fine in the time they are given, they may be able to apply to the court for an extension of time. Extensions aren’t automatic. To get an extension, the offender has to show that they have tried their best to pay the fine in the time they have been given.
Imprisonment is a jail sentence. After a judge gives a jail sentence, the offender is taken to jail and a conviction is registered against them. An offender has to apply for a pardon in order to have a jail sentence removed from their record.
If an offender is sent to jail for less than two years, they will go to a provincial institution such as Maplehurst Correctional Facility in Milton or the Central East Correctional Centre in Lindsay.
If an offender is sent to jail for two years or more, they will go to a federal penitentiary, such as the Kingston Penitentiary.
You will sometimes hear that an offender is sent to jail for “two years less a day.” This is done so that the offender will go to a provincial institution, rather than a federal penitentiary.
In some cases, the sentencing judge may give an offender credit for time they have spent in jail before being sentenced. This is often called “pre-sentence custody,” “pre-trial custody,” or “dead time,” and it can be used to reduce the length of a jail sentence.
If the judge does give credit for pre-sentence custody, they may have the option of giving “enhanced credit” or “two-for-one” credit. This means that for every day the offender spent in pre-sentence custody, the judge reduces the jail sentence by two days. For example, if the judge feels that a 45 day jail sentence is appropriate, and an offender spent 15 days in jail in pre-sentence custody, the judge may reduce the sentence that they were going to impose by 30 days, making the sentence 15 days (instead of 45).
Intermittent sentence (“weekends”)
An intermittent sentence is a jail sentence that the offender serves in ”chunks” of time, instead of all at once.
For example, if an offender gets an intermittent sentence, they may go jail on the weekends, (i.e., Friday night until Monday morning) but be out of jail during the week.
This continues until the sentence is finished. For this reason, intermittent sentences are sometimes called “weekends,” but they don’t necessarily have to be served on weekends. For example, a judge may let an offender serve an intermittent sentence by being in jail from Monday until Friday and being out of jail on weekends.
When an offender serving an intermittent sentence is not in jail, they are on a probation order.
An intermittent sentence can only happen if the judge imposes a sentence of 90 days or less.
To get an intermittent sentence, the offender will usually have to show the judge that they have a job or other significant responsibilities (e.g., child care) which would make it very hard to serve a regular jail sentence. Judges are also unlikely to give an intermittent sentence to an offender that has a criminal record that includes charges such as breach of probation or fail to comply with recognizance.
Conditional sentence (“house arrest”)
A conditional sentence is an imprisonment (jail) sentence, except that the offender serves the sentence outside of jail, under strict, jail-like conditions.
Conditional sentences are sometimes called “house arrest,” because they often require an offender to spend all or part of the sentence in their house. Just like imprisonment, a conditional sentence will result in a conviction being registered against the offender.
To give an offender a conditional sentence, the judge first imposes a sentence of imprisonment and then considers whether to let the offender serve the sentence outside of jail.
There are restrictions on when a judge can impose a conditional sentence. A judge can only impose a conditional sentence if:
- the sentence of imprisonment is less than two years;
- the offender has not been convicted of a criminal offence that requires a minimum amount of jail time;
- the offender has not been convicted of a serious personal injury offence, a terrorism offence, or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more;
- the judge is satisfied that letting the offender serve the sentence in the community would not threaten the safety of the community;
- the judge is satisfied that having the offender serve the sentence in the community is consistent with the sentencing principles of the Criminal Code.
Conditional sentences have mandatory conditions, and they usually also have restrictions that make it like a jail sentence. House arrest is often part of a conditional sentence; at least for part of the sentence. House arrest usually means that the offender must stay in their home at all times (or during certain hours) unless they are working, attending school or religious worship, or for medical appointments or emergencies. Other conditions attached may be similar to those of a probation order. It is also common for a probation order to follow a conditional sentence.
A conditional sentence is supervised by a conditional sentence supervisor (who is actually a probation officer.) Every conditional sentence requires the offender to report to the conditional sentence supervisor at least once. On many conditional sentences, the offender has to report several times.
If an offender allegedly breaks one or more of the conditions of a conditional sentence, there may be a hearing held in front of a judge. If the judge is convinced that the offender broke one or more of the conditions without a lawful or reasonable excuse, the judge may make the offender serve the remaining time in jail.
Sentences are punishments for convicted defendants. Prescribed punishments for crimes can be found in state and federal statutes. The Eighth Amendment places limits on the severity of punishments.
The death penalty
Thirty‐eight states and the federal government impose capital punishment. It is usually reserved for those who commit first‐degree murder under aggravating circumstances. Defendants convicted of capital offenses have a right to bring mitigating circumstances to the attention of the sentencing authority in order to ensure that only those individuals who deserve to die for their crimes receive the death penalty. Similarly, defendants also have a right to be free from the arbitrary and capricious imposition of death as a penalty.
To prevent the arbitrary application of the death penalty, death‐penalty statutes contain many safeguards. Particularly significant are requirements that limit the discretion of the sentencing jury or judge, that require the presence of aggravating circumstances, that allow the introduction of evidence showing mitigating circumstances, that mandate a two‐part proceeding (one for the determination of innocence or guilt and the other for deciding the sentence), and that provide for the automatic review by an appellate court of all death sentences.
Jails are short‐term lock‐up centers normally run by counties and operated by county sheriffs. Inmates housed in jails include unconvicted defendants awaiting trial who are unable to make bail, convicted misdemeanants, and felons serving jail time as a result of probation violations. Prisons are long‐term penal facilities operated by state and federal governments. Most prison inmates are convicted felons serving sentences of more than one year.
Probation, the most frequently used criminal sanction, is a sentence that an offender serves in the community in lieu of incarceration. Probationers are required to adhere to conditions of probation, such as obeying all laws, paying fines or restitution, reporting to a probation officer, abstaining from drug usage, refraining from travel out of the area where the offender lives, and avoiding certain people (for example, other criminals or victims) and places. If a probationer violates any condition of probation or commits a new crime, the judge can revoke (take away) probation and incarcerate the offender. Probation officers monitor offenders and hook them up with various services in the community. Probation officers handle such large caseloads (on average, 118 per officer in 1994) that they are left with limited time to track or supervise offenders.
Probation is the preferred sentence when the crime is nonviolent, the offender isn’t dangerous, the convicted criminal isn’t a repeat offender, and/or the criminal is willing to make restitution. Due to prison overcrowding, judges have been forced to place more felons on probation. A Rand Corporation study found that 60 percent of the felons on probation were rearrested for a new crime.
Intensive supervision probation (ISP)
Intensive supervision probation is used for offenders needing more supervision. It allows offenders to live in the community but under severe restrictions. ISP offenders can be required to meet with their probation officers as often as five times a week, to submit to random drug urinalysis tests, to work, to attend drug treatment, and to be under tight surveillance. In 1994, the average ISP caseload was 29 cases for each probation officer. At least one jurisdiction in each state has implemented ISP, primarily for those convicted of crimes against property.
How cost‐effective is ISP? A study of 14 jurisdictions across the country, sponsored by the U.S. Department of Justice and conducted by the Rand Corporation, indicated ISP didn’t reduce the cost of correctional services, in part, because the offenders targeted for participation wouldn’t have done much prison time. The study also showed that ISP didn’t reduce recidivism. Recidivism among ISP participants, however, was often related to violations of the conditions of intensive probation rather than to new crimes.
Offenders sentenced to boot camps live in military‐style barracks and undergo rigorous physical and behavioral training for three to six months. Boot camps are generally reserved for first‐time offenders in their late teens or early twenties. These highly regimented programs are designed to instill discipline and hold youths accountable for their actions. Offenders who successfully complete the program are resentenced to probation, avoiding confinement in prison. Research has failed to confirm that boot camps lower recidivism rates.
House arrest and electronic monitoring
An offender sentenced to house arrest must spend all or most of the day at home. Compliance is enforced in some states by requiring the offender to wear a small transmitter on the wrist or ankle, which sends electronic signals to monitoring units. House arrest can stand alone as a sanction or be used with electronic monitoring. It can also be coupled with fines, community service, and other sanctions. Some electronic monitoring devices can analyze an offender’s breath to see if the offender has drunk any alcohol in violation of conditions of the house‐arrest sentence.
Fines are common for first‐time offenders convicted of crimes such as shoplifting, minor drug possession, and traffic violations. In more serious cases, judges combine fines with incarceration or other punishments. If fines aren’t paid, offenders go to jail. Fines discriminate against the poor. Day fines are a creative response to this problem. They require offenders to pay a percentage of their weekly or monthly earnings, thus attempting to equalize the financial impact of the sentence on the offender.
Restitution requires an offender to pay money to a victim, whereas a fine requires an offender to pay money to the government. The idea behind restitution is to make the offender pay the victim back for economic losses caused by the crime. The offender may, for example, be required to pay the victim’s medical bills or pay a sum of money equal to the value of property stolen. The biggest problem with restitution is collecting the money. To enforce restitution orders, a judge can attach, or garnish, an offender’s assets or wages. Another way to enforce restitution is possible in cases in which restitution is a condition of probation. If the offender fails to pay restitution, a judge can revoke the probation and incarcerate the offender.
Paying the community back for harm done, through doing work that benefits the public, is the essence of community service. Offenders can be required, for example, to pick up trash in parks, plant trees, and wash away graffiti.
Punishing by shaming provides a cheap and morally satisfying alternative to punishment. Courts have ordered people convicted of assault or child molestation to put signs in their yards, announcing their crimes. Still other judges have ordered chronic drunk drivers to put bright orange bumper stickers on their cars, announcing their problem and urging other drivers to report erratic driving to the police. Critics say this form of punishment is unlikely to succeed in changing the behavior of repeat offenders because those people are used to breaking society’s rules anyway.
Asset forfeiture consists of the government’s seizing of personal assets obtained from or used in a criminal enterprise. For example, an airplane may be seized if it was used in smuggling drugs into the country. Law enforcement usually keeps the assets.
Both civil and criminal forfeiture are possible. Civil‐forfeiture laws empower the government to take property without charging a person with a crime and without a criminal conviction. Property can be seized if police believe it was bought with profits of illegal activity or used to facilitate a crime. Police need only to show probable cause to seize property under civil law. If the owner wants to reclaim seized property, the owner usually has to file a lawsuit. At the trial in civil court, the burden of proof rests on the owner to prove the property is innocent by a preponderance of evidence — a higher standard than the probable cause standard used to take the property.
The differences between civil and criminal forfeiture are that criminal forfeiture arisesafter the criminal conviction of a defendant and that a defendant in a criminal case is afforded full due process rights. Important parts of the Bill of Rights don’t apply to civil forfeiture. For example, the property owner has no Sixth Amendment right to an attorney, no Fifth Amendment right to be protected from self‐incrimination, and no Eighth Amendment right to be free from cruel and unusual punishment that is disproportionate to the crime charged against the property. The American Civil Liberties Union believes civil forfeiture violates fundamental constitutional rights, including the right not to be deprived of property without due process of law and the right to be free from punishment that is unreasonably harsh.