Sentencing: Who Decides The Punishment, And How It Is Determined

Sentencing: Who Decides the Punishment & How It's Determined

HandcuffsWhat if you are a defendant charged with a serious criminal offense, for which if you are found guilty, you are facing a potential jail sentence? You have heard or researched on the internet that you may be sentenced to up to 364 days in the county department of corrections, a fine up to $2500.00, or both (the maximum penalty by law for any Class A misdemeanor in Illinois), or if you are charged with a felony, a period of incarceration in the department of corrections which, depending upon the level of felony, may carry a maximum term of anywhere from 3 to 30 years, and in the case of offenses involving deadly weapons, mandatory enhancements of 15, 20 or even 25 additional years. Are you concerned? It is only natural that you would be, because if you are found guilty of your charges, you may be facing the possibility of incarceration, a conviction, and/or other consequences that flow collaterally from a conviction.

So, how does one know whether or not they will go to jail for a particular offense? How does sentencing work in Illinois? There are a number of factors at play, but guidance may be found in the Illinois Code of Corrections, which deals with all things involved with sentencing, including the rules describing how hearings are to be conducted, and what factors a court may consider.

Right to a Presentence Report

First of all, in any felony case, from first degree murder on down to class 4 felonies (such as possession of a small quantity of a controlled substance), a defendant has the right to have a Presentence Investigation Report (PSI) prepared by a court designated official, typically the Probation Services Department. This right may only be waived in writing and in open court, after proper admonishments are given by the court to the defendant. In the case of an agreed upon sentence, it is common for the parties to waive the investigation and report however. In misdemeanors, there is no absolute right or requirement for such a report, although one may be requested, and if deemed appropriate, ordered by the court. In DUI prosecutions, prior to sentencing, before a Judge may consider any sort of supervisory sentence, an Alcohol and Drug Assessment must be prepared by the appropriate agency (in Chicago and across Cook County, Illinois, that would be the Offices of Central States Institute, "CSI"), which details the motorist’s history of alcohol or drug related offenses, as well as the motorist’s statements regarding history of usage, symptoms of abuse or dependency, etc. A full PSI includes an entire history of the offender, including medical, psychological, educational, family, employment, and criminal case information, as well as any other relevant information.

The Sentencing Hearing

Let us suppose that your lawyer was able to reach an agreement for a proposed sentence, and you have either been found guilty following a trial, or you have entered a "blind plea" of guilty. A sentencing hearing will commence. At such a hearing, both sides may present live witnesses or exhibits into evidence. The Judge passes the sentence in Illinois, although in some States, a jury may pass sentence. When Illinois still had a Death Penalty, a defendant could request that a jury decide whether or not to impose it after a hearing. In deciding the sentence to impose, the Judge must consider the evidence at trial (or what is offered in a proffer by the State if a guilty plea is involved). The court must also consider 1) the contents of a PSI, 2) evidence in aggravation and mitigation, 3) any substance abuse treatment, 4) screening or assessment of the defendant, 5) arguments of counsel regarding sentencing alternatives, 6) the testimony of a victim of violent crime, 7) whether it is a DUI, or narcotics delivery offense, 8) the impact of the crime suffered, and finally, 9) the statement of the accused, who is offered the opportunity to say something on his or her behalf, in what is known as "allocution."

Factors in Aggravation and Mitigation

When it comes to the factors in aggravation and mitigation mentioned above, there are statutes that dictate what those factors are, and they serve as an excellent framework for any attorney in preparing for and organizing one’s thoughts for the sentencing hearing. Factors in aggravation include, but are not limited to: 1) the nature of the case (was it a crime of violence), 2) whether there were exceptionally brutal or heinous aspects of the crime, 3) whether the use of a deadly weapon was involved, 4) the age of the victim, 5) whether or not the offense involved a person of trust or authority violating that position, 6) and most importantly, the prior criminal history, if any, of the accused. On the other hand, factors in mitigation include: 1) the lack of any criminal history of the accused, 2) the non-violent nature of the offense, 3) whether the victims received (or will receive) restitution for their loss, 4) the educational background or employment history of the accused, 5) any medical or psychological treatment needs, 6) amenability to receive treatment or counseling for underlying abuse or dependency issues involving alcohol or drugs, and of course, 7) the willingness of the accused to accept responsibility for the illegal conduct.

Mandatory Minimum Sentencing

Although the stated purpose behind the Illinois Criminal Code is to fashion penalties that are "proportionate to the seriousness of the offense" and which permit courts to take into account differing potentials for rehabilitation among offenders (see 720 ILCS 5/1-2), the Illinois Criminal Code has numerous provisions for mandatory minimum sentencing for certain offenses; too many to list here. Except in these cases that have mandatory minimums, in general terms, a potential sentence for an offense can be charted out as follows:

First Degree Murder: 20 to 60 years in prison, no possibility of probation, etc.;
Class X Felonies: 6 to 30 years in prison, no possibility of probation, etc.;
Class 1 Felonies: 4-15 years in prison, or up to 48 months of probation or conditional discharge;
Class 2 Felonies: 3-7 years in prison, or up to 48 months of probation or conditional discharge;
Class 3 Felonies: 2-5 years in prison, or up to 30 months of probation or conditional discharge;
Class 4 Felonies: 1-3 years in prison, or up to 30 months of probation or conditional discharge;
Class A Misdemeanors: up to 364 days in jail, 24 months of probation, conditional discharge or supervision;
Class B Misdemeanors: up to 180 days in jail, 24 months of probation, conditional discharge or supervision;
Class C Misdemeanors: up to 30 days in jail, 24 months of probation, conditional discharge or supervision;
Petty Offenses: punishable by a fine only, or up to 12 months of probation, conditional discharge or supervision.

With the exception of Class X felonies, murder, and other offenses where it is specifically prohibited, a period of home confinement or work release incarceration may be imposed in lieu of imprisonment or jail time. With respect to the stated ranges of sentencing, it is up to the judge to set a fixed period, not a range. Illinois abolished the "parole" system years ago, so one serves their sentence, less any credits to reduce their time, and then is released upon a period of mandatory supervised release, which is also made part of any sentence of incarceration for any felony offense.

Extended Term and Repeat Offender Sentencing

When it comes to felonies, one may also find themselves eligible for what is referred to as an "extended term" sentence. Typically, if a person has been convicted of at least one prior felony at the same or higher level as the new one, they face the potential of being double punched on the sentence. For a low class 4 felony, you would now face 3-6 years in prison, 5-10 years on a class 3, 6-14 years on a class 2, 8-30 years on a class 1, and 30-60 years on a class X. In addition, one may have their offense increased to a higher level based upon priors. For example, someone convicted of two prior class 2 felonies and then found guilty of a third one, will be sentenced as a Class X offender. A person deemed a Habitual Criminal (two or more prior class X felonies upon a third conviction) will receive a natural life sentence.

When certain misdemeanors are involved, a repeat offense may be upgraded to a felony based upon one or more prior like offenses. Examples of this are: DUI (3rd or subsequent violation is a felony, and the level increased with each new offense); Retail Theft, Domestic Battery, and Prostitution among others, where a 2nd or subsequent offense may be charged as a felony.

Talk to an Experienced Lawyer About Sentencing Options

Whether you are a first offender or a multiple offender facing criminal charges, defending your case in court is a daunting task, and not to be undertaken lightly; certainly not without skillful lawyers by your side. If you find yourself in such a situation, you need the Chicago criminal defense attorneys at Mitchell S. Sexner & Associates LLC to guide you through every stage of the proceedings. Call us today at (800) 996-4824 to schedule an immediate, no cost, no obligation, confidential consultation with one of our lawyers. With offices in Chicago and other locations, help is only one phone call away.

Written by Mitchell S. Sexner Last Updated : January 10, 2023