The Four Key Factors in Criminal Sentences
Judges, who make final determinations in these situations, have a great deal of discretion when setting criminal sentences, as long as these sentences are consistent with the four key factors in criminal sentences.
Retribution
Criminal sentences punish criminal offenders who upset the moral balance of society and harm the victim. Retribution is the “eye for an eye” mentality which requires offenders to “pay their debt to society.” Once the offender loses an eye (retribution for the victim) and pays his/her debt to society (rebalances everything), everyone moves on, at least as far as retribution is concerned.
Retribution is only one element of criminal sentencing. The other three are discussed below.
Furthermore, retribution is not revenge. Retribution is a formal, legal process. A Marietta criminal defense lawyer advocates for defendants throughout this process. Retribution is not a personal or emotional response driven by pleasure in suffering.
Deterrence
Quite simply, deterrence prevents the offender (specific deterrence) and others (general deterrence) from committing future crimes.
Deterrence is of limited value if the defendant committed a crime of passion, like murder or assault. Very few people stop to consider the consequences or review court news sites when their blood is up.
Deterrence is of considerable value in crimes of opportunity, such as burglary or theft. People always consider the pros and cons in these situations.
Incapacitation
Liberty restrictions protect the public by removing dangerous offenders from society. Incarceration certainly fits the bill. Supervised release, usually probation or parole, also incapacitates defendants. These programs restrict movement and increase accountability, meaning that people have fewer opportunities to do bad things.
Rehabilitation
We end this section with the sentencing component perhaps most lacking in Georgia criminal justice matters.
Sex crimes are a good example. Some rehabilitation programs are available, such as drug treatment programs. But the registration requirement is anti-rehabilitative, as far as many people are concerned.
Plea bargains resolve most criminal cases. During plea bargaining sessions, the prosecutor and a Marietta criminal defense lawyer agree on a sentence that’s consistent with the four factors and also considers aggravating and mitigating circumstances.
Aggravating and Mitigating Circumstances
The four factors usually point to a sentence somewhere in the middle range of punishment. This sentence goes up or down, depending on aggravating and mitigating circumstances.
Aggravating factors aren’t legally part of a criminal case. But they have a direct bearing on sentencing, because of the proportionality requirement. The theory is that if aggravating circumstances exist, punishment must send a stronger message. Common aggravating circumstances include:
- Defendant’s Criminal History: Usually, the defendant’s criminal history is irrelevant during the guilt/innocence portion of a trial. A subsequent DUI upgrade is one of the most notable exceptions. Courts want to ensure that juries don’t convict defendants because they’re bad people. But criminal history is highly relevant during sentencing.
- Level of Culpability: Legally, the guy who drives the getaway car is as guilty as the guy who shoots a bank teller. Pragmatically, however, there’s a difference. Remorse, or the lack thereof, is also relevant in this area, as is the defendant’s status as a leader or a follower.
- Circumstance of the Offense: The law often reflects these aggravating circumstances. Once again, DUI is a good example. A DUI with a high BAC level or that involves a collision is a more serious offense than another DUI.
Prosecutors eagerly point out aggravating factors. A Marietta criminal defense lawyer must be equally aggressive when pointing out mitigating factors.
- First-Time Offense: Anything, or almost anything, can happen once. Usually, first-time offenders aren’t as dangerous (or experienced) as repeat offenders. Therefore, the need for punishment isn’t as great.
- Cooperation: Many defendants turn state’s evidence during criminal investigations. They rat on their colleagues or spill the beans about unrelated criminal activities. This cooperation often reduces their sentences, but its legal value may be negligible.
- Personal Circumstances: “The devil made me do it” and “Society is to blame” are not legal defenses. But especially in today’s environment, mental health issues or a history of trauma may justify a different approach to sentencing.
The presence (or absence) of a possible legal defense may be the biggest aggravating/mitigating circumstance. If a procedural, substantive, or affirmative defense may apply, a Marietta criminal defense lawyer has the upper hand during pela negotiations. If that’s not the case, a lawyer must negotiate from a position of weakness.
Above all, the punishment must fit the crime, depending on several factors. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
