Sentence (law)
Encyclopedia
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 punishment
s 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.
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.
, 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.
. 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
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, a sentence forms the final explicit act of a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
, a fine and/or other punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
s against a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
convicted of a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. 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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
charges are "mitigated" and reduced to manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
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
Collateral consequences of criminal charges
Collateral consequences of criminal conviction, commonly referred to as the "Four C's" are the additional civil state penalties, mandated by statute, that attach to criminal convictions. They are not part of the direct consequences of criminal conviction, such as incarceration, fines, and/or...
.
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.
Sentencing law sometimes includes "cliffs" that result in much stiffer penalties when certain facts apply. For instance, an armed career criminal or habitual offender
Habitual offender
A habitual offender is a person who has repeatedly committed the same crime. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions...
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 lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, where it indicated the opinion of a jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
on a given question, expressed in written or in oral responsa. It was also the opinion of senators
Roman Senate
The Senate of the Roman Republic was a political institution in the ancient Roman Republic, however, it was not an elected body, but one whose members were appointed by the consuls, and later by the censors. After a magistrate served his term in office, it usually was followed with automatic...
(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
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
).
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 lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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:- RetributionRetributive justiceRetributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
- DeterrenceDeterrence (legal)Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
- DenunciationDenunciation (penology)Denunciation in the context of sentencing philosophy refers to the disapproval of an act by society that is expressed by the imposition of a sentence...
- IncapacitationIncapacitation (penology)Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending....
- RehabilitationRehabilitation (penology)Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
| Theory | Aim of theory | Suitable punishment |
|---|---|---|
| Retribution Retributive justice Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.... |
Punishment imposed only on ground that an offense has been committed |
|
| Deterrence Deterrence (legal) Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can... |
|
|
| Rehabilitation Rehabilitation (penology) Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity.... |
To reform the offender's behavior |
|
| Incapacitation Incapacitation (penology) Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending.... - Protection of the Public |
Offender is made incapable of committing further crime to protect society at large from crime |
|
| Reparation | Repayment to victim(s) or to community |
|
| Denunciation Denunciation (penology) Denunciation in the context of sentencing philosophy refers to the disapproval of an act by society that is expressed by the imposition of a sentence... |
Society expressing its disapproval reinforcing moral boundaries |
|
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 appealAppeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
. 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
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
.
See also
- Criminal sentencing in CanadaCriminal sentencing in CanadaIn Canada, a judge sentences a person after they have been found guilty of a crime . After a determination is made about the facts being relied on for sentencing, and hearing from both the Crown and the defence about what the appropriate sentence should be, the judge must pick from a number of...
- English criminal law#Sentencing
- Criminal sentencing in the United StatesCriminal sentencing in the United StatesIn the United States, a judge sentences a person convicted of a crime. The length of the prison term depends upon multiple factors including the severity and type of the crime, state and/or federal sentencing guidelines, the convicted's criminal record, and the personal discretion of the judge...
- Criminal costsCriminal costsCriminal costs are financial penalties awarded against convicted criminals, in addition to the sentence they receive, in recognition of the costs of the court in bringing the prosecution.-England and Wales:...
- Incapacitation (penology)Incapacitation (penology)Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending....
- Sentencing disparitySentencing disparitySentencing disparity is defined as "a form of unequal treatment that is of often of unexplained cause and is at least incongrous, unfair and disadvantaging in consequence"...