Sentencing

PART I. Scope of Chapter; Sentence Authorities

Standard 18-1.1 Scope of chapter

(a) This chapter deals with sentencing of adult individuals or organizations convicted of felonies and misdemeanors (for which an individual offender may be sentenced to total confinement for six months or more).

(b) This chapter does not deal with capital punishment.

(c) This chapter does not deal with sentencing of juvenile offenders unless those offenders are tried and convicted as adults.

(d) This chapter does not deal with commitments to institutions for treatment programs, whether characterized as criminal or civil, unless a commitment is a part of a sentence imposed following conviction for an offense.

(e) This chapter does not deal with sentencing by military justice tribunals.

Standard 18-1.2 The legislative function

(a) The legislature and executive should determine the public policies of sentencing and enact the statutory framework for the sentencing system. The legislative function is performed best by statutes that articulate the societal purposes in sentencing, define the authorized types of sanctions, and set the maximum limits of those sanctions.

(b) The legislature and executive should establish the organs of government necessary to implement the legislatively determined policies within the legislative framework and delegate to them the powers appropriate to their roles.

Standard 18-1.3 The intermediate function; guided judicial discretion

(a) The legislature should create or empower a governmental agency to transform legislative policy choices into more particularized sentencing provisions that guide sentencing courts. The agency should also be charged with responsibility to collect, evaluate and disseminate information regarding sentences imposed and carried out within the jurisdiction. Guidance of judicial discretion in sentencing and development of an information base about sentencing are the basic aspects of what these Standards describe as "the intermediate function."

(b) The intermediate function should be performed by an agency with state-wide authority. The intermediate function is performed most effectively through a sentencing commission.

(c) If a jurisdiction elects not to create a sentencing commission, the legislature should either undertake the intermediate function itself or designate another organ of government to do so. If the function is delegated to the judicial branch, it should be made the responsibility of the highest state court or a state-wide judicial conference.

Standard 18-1.4 The sentencing function; abolition of jury sentencing; sentencing councils; appellate review of sentences

(a) Imposition of sentences is a judicial function to be performed by sentencing courts. The function of sentencing courts is to impose a sentence upon each offender that is appropriate to the offense and the offender. The jury’s role in a criminal trial should not extend to determination of the appropriate sentence.

(b) Sentencing courts may convene councils, composed of judges sitting on a sentencing court, as advisory panels to develop common criteria for sentencing decisions and to assist individual judges in determining the appropriate sentences in particular cases.

(c) The highest court of the state, if authorized to promulgate rules of criminal procedure, should establish rules for presentence and sentencing proceedings.

(d) Review of sentences imposed by sentencing courts is a judicial function to be performed by appellate courts.

PART II. Public Policy Legislative Choices

Standard 18-2.1 Multiple purposes; consequential and retributive approaches

(a) The legislature should consider at least five different societal purposes in designing a sentencing system:

(i) To foster respect for the law and to deter criminal conduct.

(ii) To incapacitate offenders.

(iii) To punish offenders.

(iv) To provide restitution or reparation to victims of crime.

(v) To rehabilitate offenders.

(b) Determination of the societal purposes for sentencing is a primary element of the legislative function. The legislature may be aided by the agency performing the intermediate function.

Standard 18-2.2 Types of sanctions authorized

(a) The legislature should enact a criminal code that authorizes imposition of the following types of sanctions upon persons convicted of offenses:

(i) Compliance programs. Compliance programs are sanctions intended to promote offenders’ future compliance with the law. For individuals, compliance programs involve control or supervision of offenders within their communities, such as probation. For organizations, compliance programs may involve supervision or change in the management or control of an offender.

(ii) Economic sanctions. Economic sanctions include fines, monetary awards payable to victims, and mandatory community service. The legislature should not authorize imposition of economic sanctions for the purpose of producing revenue.

(iii) Acknowledgment sanctions. Acknowledgment sanctions include court-ordered communications to the public at large, or to particular classes of persons, of information about offenders’ convictions and other facts about the offenses.

(iv) Intermittent confinement. Intermittent confinement is confinement during specified hours in a local facility or in an offender’s residence.

(v) Total confinement. Total confinement is incarceration in a federal, state, county, or municipal institution.

(b) The legislature should be receptive to the development and use of new sanctions not set forth in these standards.

(c) The legislature should enact an adult community corrections act to facilitate the establishment of a comprehensive adult community corrections program. The Model Adult Community Corrections Act is a suggested example.

Standard 18-2.3 Costs of criminal sanctions; resources needed

(a) In designing or changing the criminal justice system, the legislature should consider financial and other costs of carrying out sentences imposed. For this purpose, the legislature should ensure that it receives a "sentencing impact statement" before it enacts new provisions in the criminal code.

(b) The legislature should appropriate the operating and capital funds necessary for each part of the sentencing system to perform its prescribed role. In particular, the legislature should provide adequate funding for alcohol and drug treatment programs.

(d) The legislature should recognize the consequences of not appropriating necessary funds, including the possibility that offenders will not serve appropriate and just sentences.

(e) In the event that the legislature fails to provide necessary funds, the agency performing the intermediate function should see that the aggregate of sentences imposed in conformity with legislative policies does not exceed the facilities and services provided for proper execution of those sentences. In particular, the aggregate of sentences to total confinement should not exceed the lawful capacity of the prison and jail system of the state.

Standard 18-2.4 Severity of sentences generally

The legislature should ensure that maximum authorized levels of severity of sentences and presumptive sentences are consistent with rational, civilized, and humane values. Sentences authorized and imposed, taking into account the gravity of the offenses, should be no more severe than necessary to achieve the societal purposes for which they are authorized.

Standard 18-2.5 Determinacy and disparity

(a) The legislature should create a sentencing structure that enables the agency performing the intermediate function to make reasonably accurate forecasts of the aggregate of sentencing decisions, including forecasts of the types of sanctions and severity of sentences imposed, so that the legislature can make informed changes in sentence patterns through amendment of the criminal code, or the agency can do so through revised guidance to sentencing courts.

(b) The legislature should create a sentencing structure that sufficiently guides the exercise of sentencing courts’ discretion to the end that unwarranted and inequitable disparities in sentences are avoided.

Standard 18-2.6 Individualization of sentences

(a) The legislature should authorize sentencing courts to exercise substantial discretion to determine sentences in accordance with the gravity of offenses and the degree of culpability of particular offenders.

(i) Sentencing courts should be permitted to take into account facts and circumstances concerning the offense or the offender that constitute aggravating or mitigating factors.

(ii) Neither the legislature nor the agency performing the intermediate function should assign specific weights to aggravating or mitigating factors.

(b) The legislature should authorize sentencing courts, sentencing individual offenders, to take into account personal characteristics not material to their culpability that may justify imposition of a different type of sanction or, in limited circumstances, a sentence of lesser severity than would otherwise be imposed.

Standard 18-2.7 Systemic review

(a) The legislature should ensure that valid, current data are compiled on the operation of the criminal justice system, including data on the use and efficacy of each type of sanction.

(b) At least once every ten years, the legislature should re-examine legislative policies regarding sentencing in light of the pattern of sentences imposed and executed.

PART III. Legislatively Authorized Sentences

Standard 18-3.1 Ordinary offenses and offenders

(a) For each offense, the agency performing the intermediate function should guide sentencing courts to the presumptive sentence, i.e., the level of severity of the sentence and the permissible types of sanctions to be imposed in the ordinary case. For cases that are not ordinary, the legislature or the agency should establish criteria for imposing sanctions of more or less severity, or of different types of sanctions. Such criteria should include the factors aggravating or mitigating the gravity of offenses, the degree of offenders’ culpability, and personal characteristics of individual offenders that may be taken into account.

(b) Presumptive sentences may be expressed in terms of ranges of severity of sanctions.

Standard 18-3.2 Mitigating factors

(a) The legislature or the agency performing the intermediate function should identify factors that may mitigate the gravity of an offense or an offender’s culpability in commission of the offense.

(b) The agency performing the intermediate function should guide sentencing courts, upon finding that one or more of the mitigating factors is present in a case, in the use of discretion to choose a level of severity or type of sanction different from the presumptive sentence for an ordinary offense by an ordinary offender.

(d) When presumptive sentences are expressed in ranges of severity, sentencing courts should be guided to consider mitigating factors in determining sentences within the range and, if the factors are substantial, in departing downward from the range.

Standard 18-3.3 Definition of offenses; aggravating factors

(a) The legislature should define offenses so that important factors determining the gravity of offenses are made elements of the offenses rather than aggravating factors to be considered only in sentencing.

(i) The legislature should categorize offenses in which an act of violence is an element separately from similar non-violent offenses so that the levels of severity of authorized and presumptive sentences are appropriate for each type of offense.

(ii) For offenses in which the gravity of the offense varies with the amount of money or quantity of goods, the legislature should differentiate offenses by including amounts or quantities as elements of the offense.

(b) The legislature or the agency performing the intermediate function should identify factors that may aggravate the gravity of an offense or an offender’s culpability in commission of the offense.

(c) The agency performing the intermediate function should guide sentencing courts, upon finding that one or more of the aggravating factors is present in a case, in the use of discretion to choose a level of severity or type of sanction different from the presumptive sentence for an ordinary offense by an ordinary offender.

(d) Aggravating factors should not be assigned specific weights by statute or by guidance to sentencing courts.

(e) When presumptive sentences are expressed in ranges of severity, sentencing courts should be guided to consider aggravating factors in determining sentences within the range and, if the factors are substantial, in departing upward from the range

Standard 18-3.4 Personal characteristics of individual offenders

(a) The legislature and the agency performing the intermediate function should authorize sentencing courts, sentencing individual offenders, to consider their physical, mental, social and economic characteristics, even though not material to their culpability for the offenses, only as provided in this Standard.

(b) The legislature and the agency should permit sentencing courts to use information about offenders’ financial circumstances for the purpose of determination of the amount or terms of fines or other economic sanctions.

(c) Except as provided in (b), the legislature and the agency should provide that sentencing courts may take into account personal characteristics of offenders not material to their culpability to determine the appropriate types of sanctions to impose or, if the characteristics are indicative of circumstances of hardship, deprivation, or handicap, to lessen the severity of sentences that would have been imposed.

(d) The legislature should specify that the following personal characteristics shall not, in and of themselves, be used for this or any other purpose with regard to sentencing:

(i) Race,

(ii) Gender or sexual orientation,

(iii) National origin,

(iv) Religion or creed,

(v) Marital status,

(vi) Political affiliation or belief.

Standard 18-3.5 Criminal history; recidivism

(a) The legislature should authorize more severe sentences for convicted offenders with prior convictions. The extent of enhancement should be reasonably related to the sentence severity levels authorized for the offense of conviction.

(b) Standards for enhancement of sentence on the basis of criminal history should take into account the nature and number of prior convictions and the time elapsed since an offender’s most recent prior conviction and completion of service of sentence. The legislature should fix time periods after which offenders’ prior convictions may not be taken into account to enhance sentence; these periods may vary with the nature of the prior offenses.

(c) The agency performing the intermediate function should guide sentencing courts to the appropriate weight to be given to an offender’s criminal history.

(d) If a jurisdiction has an "habitual offender" statute or comparable law regarding recidivists, the statute should provide that sentences imposed because of prior convictions should be reasonably related in severity to the level of sentence appropriate for the offense of current conviction.

Standard 18-3.6 Offense of conviction as basis for sentence

The legislature and the agency performing the intermediate function should provide that the severity of sentences and the types of sanctions imposed are to be determined by sentencing courts with reference to the offense of conviction in light of defined aggravating and mitigating factors. The offense of conviction should be fixed by the charges proven at trial or established as the factual basis for a plea of guilty or nolo contendere. Sentence should not be based upon the so-called "real offense," where different from the offense of conviction.

Standard 18-3.7 Convictions of multiple offenses

(a) The agency performing the intermediate function should direct sentencing courts to impose on any offender convicted of multiple offenses a consolidated set of sentences that appropriately takes into account all of the offender’s current offenses.

(b) For offenses that are part of a criminal episode,

(i) convictions of offenses whose elements substantially overlap should be merged for sentencing,

(ii) sentencing courts should not change the type of sanction or increase the severity of sentences for multiple offenses merely as a result of the number of counts or charges made from a single episode, and

(iii) where the separate offenses are not merged for sentencing, sentencing courts should impose sentences of a type of sanction and level of severity that take into account the fact that the separate offenses occurred as part of an episode.

(c) If multiple offenses are of a kind that is graded by the amount of money or property involved, sentencing courts should be authorized and guided to determine the appropriate sentence by treating the offenses as a single offense and measuring its gravity by cumulating the amounts of money or property in the separate offenses.

(d) Upon conviction of an offender for multiple offenses not within (b) or (c), the presumptive sentence should be derived by reference to the sentence appropriate for the most serious offense. If the court determines that an enhanced sentence is appropriate because of the other current offenses, the enhancement should ordinarily be determined as if the other current offenses were treated as part of the offender’s criminal history or as factors aggravating the most serious offense.

(e) Sentencing courts, sentencing an offender who is subject to service of a prior sentence, should be authorized and guided to take into account the unexecuted part of the prior sentence in shaping a consolidated set of sentences.

Standard 18-3.8 Multiple offenses in different jurisdictions

(a) The agency performing the intermediate function should direct sentencing courts, sentencing an offender who is subject to a prior sentence of total confinement imposed by a court in another jurisdiction, to take into account the unexecuted part of the prior sentence in shaping the sentence to be imposed.

(b) The legislature should make it possible for multiple sentences of total confinement imposed by different states to be served under one prison authority. A sentencing court should be authorized to impose a sanction of total confinement to run concurrently with an out-of-state sentence, even though the time will be served in an out-of-state institution.

(d) The legislature should authorize implementation of the principles in this standard through interstate and federal-state agreements.

(b) The intermediate function should be performed by an agency with state-wide authority. The intermediate function is performed most effectively through a sentencing commission.

Standard 18-1.4 The sentencing function; abolition of jury sentencing; sentencing councils; appellate review of sentences

(c) The highest court of the state, if authorized to promulgate rules of criminal procedure, should establish rules for presentence and sentencing proceedings.

(d) Review of sentences imposed by sentencing courts is a judicial function to be performed by appellate courts.

PART IV. The Intermediate Function

Standard 18-4.1 Basic responsibilities of the agency performing the intermediate function

(a) Implementation of legislative policy determinations within the statutory framework of the criminal code requires a state-wide agency to develop a more specific set of provisions that guide sentencing courts to presumptive sentences and in the appropriate use of aggravating and mitigating factors, offenders’ criminal history, and offenders’ personal characteristics. This intermediate function is crucial to effective administration of a criminal justice system in a way that meets the established societal objectives, makes optimal use of available resources, and results in sentences that are reasonably determinate.

(b) The agency performing the intermediate function should be the information center for all elements of the criminal justice system. The agency should collect, analyze and disseminate information on the nature and effects of sentences imposed and carried out. The agency should develop means to monitor, evaluate, and predict patterns of sentencing, including levels of severity of sentences imposed and relative use of each type of sanction. Information gathered by the agency is necessary to the legislature’s performance of the legislative function, to the agency’s performance of the intermediate function, and to the courts’ performance of the judicial function. The agency’s responsibility to provide information concerning the sentencing system extends to members of the bar and to the general public.

Standard 18-4.2 Establishment of sentencing commission

(a) If a jurisdiction elects to establish a sentencing commission, the legislature should authorize the commission as a permanent body. The legislature should authorize appointment of commission members and the chair by the governor with the advice and consent of the senate or by the presiding judge of the highest state court. The legislature should provide that the commission be composed of lay persons and persons with varying perspectives and experience within the criminal justice system and with sentencing processes, including at least one representative of the judiciary, prosecuting authorities, defense bar, and correctional and probation agencies. In composing the commission, consideration should be given to the community’s ethnic and gender diversity.

(i) Members of the commission should serve for a term of years long enough to ensure continuity and efficient functioning of the commission, but short enough to allow for the regular infusion of new perspectives and experience.

(ii) Members of the commission should be selected for their knowledge and experience and their ability to adopt a systemic, policy-making orientation. Members should not function as advocates of discrete segments of the criminal justice system.

(b) The legislature should designate the commission’s responsibilities to include the following:

(i) promulgation and periodic revision of presumptive sentences and other provisions to guide sentencing discretion;

(ii) ongoing data gathering and research relating to sentencing policies and practices, including studies regarding compliance with the provisions promulgated by the commission, rates of disparities in sentencing, and the past and projected impact of the provisions promulgated by the commission;

(iii) periodic reports to he legislature and the public regarding the commission’s data gathering and research, and reports responsive to any particular queries posed by the legislature to the commission;

(iv) periodic recommendations to the legislature regarding changes in the criminal code or to the rule making authority regarding changes in the rules of criminal procedure;

(v) provision of information to the bar and the public regarding sentencing provisions promulgated by the commission and sentencing policies and practices;

(vi) development of manuals, forms, and other controls to attain greater consistency in the contents and preparation of presentence reports;

(vii) monitoring compliance with procedural rules, particularly as applicable to administrative and correctional personnel engaged in the collection and verification of sentencing data;

(viii) service as an educational agency for judges, probation officers, and for other personnel; and

(ix) administration of periodic sentencing institutes or seminars to discuss problems relating to sentencing and to develop improved criteria for the imposition of sentences.

(c) Adequate staff assistance for the commission is essential and should include persons familiar with recent developments in empirical criminology.

(d) The commission’s empirical research capacity should be given highest priority and should be adequately funded by the legislature.

Standard 18-4.3 Creation of provisions to guide sentence discretion

(a) Presumptive sentences and other criteria to guide judicial sentencing discretion should be the product of cooperative effort by the legislature and the sentencing commission. The legislature should make a clear delineation of responsibility between itself and the commission with respect to the promulgation of sentencing policy.

(b) A new commission’s first task, prior to the creation of sentencing provisions, should be a detailed empirical study of prior sentencing patterns in the jurisdiction. Projections regarding the impact of any proposed sentencing provisions should be developed. The legislature should require that the provisions promulgated by the commission reflect legislatively determined policy goals and judgments; presumptive sentences and related provisions should not be merely the product of reproducing or averaging prior sentencing practice.

(c) Proposed amendments to existing sentencing provisions should be drafted and evaluated in light of data regarding experience under the provisions in effect, and projections of future sentencing patterns under the proposed amendments.

(d) The commission should be required to observe the standards and procedures that apply generally to administrative agencies in rulemaking proceedings. Informal consultation with interested public groups and other criminal justice agencies should be encouraged.

Standard 18-4.4 Structure of provisions to guide sentence discretion

(a) The legislature should authorize the sentencing commission to transform the legislatively determined policy choices into more particularlized sentencing provisions that guide sentencing courts to the levels of severity of presumptive sentences, within statutory limits, that are appropriate for ordinary offenders.

(b) The legislature should require the commission to indicate the types of sanctions that constitute the presumptive sentence for particular offenses. The legislature should further require the commission to specify the presumptively appropriate level of severity for each sanction.

(i) The sentencing provisions should direct sentencing courts to the types of sanction and severity of sanction determined with reference to the offense of conviction and the degree of culpability of the ordinary offender.

(ii) For the sanctions of fine, intermittent confinement, or total confinement, the presumptive level of severity may be expressed in terms of a range. Sentencing courts, taking into account the material facts regarding the offense and the offender, should have broad discretion in determining sentences within the stated ranges. Ranges of presumptive sentences should be fixed so that sentences imposed are adequately determinate.

(iii) The sentencing provisions should indicate to sentencing courts the extent of adjustments in sentences appropriate to take into account an offender’s criminal history.

(iv) The legislature should permit sentencing courts to impose a sentence of lesser or greater severity or types of sanctions different from the presumptive sentence if the court finds substantial reasons for so doing. Such circumstances are present:

(A) When a court finds a mitigating or aggravating factor that on balance justifies the court’s determination, or

(B) When a court, sentencing an individual offender, finds a social, economic, physical, or mental characteristic of the offender, indicative of circumstances of hardship, deprivation, or handicap, that justifies imposition of a less severe sentence.

(c) The legislature should require the commission to determine presumptive sentences for the sanction of total confinement with the expectation that, apart from credit for good time, the sentences imposed will determine the length of sentences service.

(i) The legislature should provide that the commission may not promulgate sentencing provisions that will result in prison populations beyond the capacity of existing facilities unless the legislature appropriates funds for timely construction of additional facilities sufficient to accommodate the projected populations.

(ii) The legislature should provide that the commission may amend its sentencing provisions to reduce the length of presumptive sentences for the sanction of total confinement to relieve prison overcrowding. The amended provisions, when promulgated, should be applied to offenders still serving sentences of total confinement as well as to newly sentenced offenders.

Standard 18-4.5 Legislative agency to perform the intermediate function

(a) If a jurisdiction elects not to establish a sentencing commission, the legislature may elect to perform the intermediate function through an arm of the legislative branch.

(b) To assist the legislature in performing the intermediate function, the legislature should establish a permanent body, comparable in knowledge, experience, competence, and diversity to a sentencing commission, to advise on the substance of the guidance to sentencing courts. The legislature should also charge that body with the performance of all aspects of the intermediate function.

(c) The legislature should distinguish clearly between statutory provisions that carry out the legislative function, which should be controlling authority in sentencing proceedings, and provisions that carry out the intermediate function, which should be subject to exercise of discretion by sentencing courts.

Standard 18-4.6 Judicial agency to perform the intermediate function

(a) If a jurisdiction elects not to establish a sentencing commission, the legislature may delegate the intermediate function to the highest state court or a state-wide judicial conference. The intermediate function may be performed, in part, by rules of court.

(b) To assist the highest state court or judicial conference in performing the intermediate function, the supreme court should establish a permanent body, comparable in knowledge, experience, competence, and diversity to a sentencing commission, to advise on the substance of the guidance to sentencing courts. The court or conference should also charge that body with performance of all aspects of the intermediate function.

(c) The supreme court or courts of appeal should have the authority to modify judicially created guidelines in the normal course of the court’s appellate review of sentences imposed.

PART V. Sentencing Procedures

Standard 18-5.1 Information for sentence determination and system accountability

(a) The legislature and the agency performing the intermediate function should ensure that, in all cases, adequate information is developed, through presentence investigations or other means, to enable sentencing courts and members of the bar to perform their sentencing responsibilities.

(b) The legislature and the agency should ensure that basic information is collected on all cases in which sentences are imposed to enable monitoring and evaluation of the operation of the sentencing system.

(c) The highest state court should ensure that regular educational programs are conducted to inform sentencing courts and members of the bar about community or statewide programs and facilities that may be utilized in sentences of offenders.

Standard 18-5.2 Requirement of report

(a) The rules of procedure should authorize sentencing courts, upon their own motion or upon request of either party, to call for a presentence investigation and a written report of its results.

(b) The rules of procedure should require such investigation and report in all cases except that:

(i) The investigation and report may be omitted in a case if the offender waives them, with the consent of the prosecutor, and the court finds that it has sufficient information to sentence the offender.

(ii) The rules of procedure may provide exceptions for sentencing in cases where the costs of investigations and reports exceed possible benefits in the sentencing process.

Any sentencing court that lacks sufficient information to perform its sentencing responsibilities should have the power to order a presentence investigation and report.

Standard 18-5.3 Substantiation of information

The rules of procedure should provide that:

(i) Information in the presentence report should be limited to material facts which the preparer of the report, upon diligent inquiry, believes to be accurate and which, if challenged, can be substantiated;

(ii) The preparer of the report should be available to answer questions concerning the content of the report and the sources of information at a presentence conference and at the sentencing hearing;

(iii) If any material information in the report is challenged by either the prosecution or the defense, the preparer of the report is responsible to assist in determining whether the information can be sufficiently substantiated.

Standard 18-5.4 Contents of report

(a) The rules of procedure should require that agencies preparing presentence reports adhere to standards, developed by the agency performing the intermediate function, relating to the contents, preparation, and substantiation of presentence reports. The rules should require that all reports be made in writing.

(b) The rules should permit a sentencing court to vary the scope of reports in accordance with the court’s determination of the information it needs to perform its sentencing responsibilities. A full presentence report may contain:

(i) A description of the offense of conviction, together with any aggravating or mitigating factors;

(ii) A description of any prior criminal convictions or juvenile adjudications of the offender;

(iii) A description of personal characteristics of an individual offender, even though not material to the offender’s culpability, that may be taken into account in determination of the sentence;

(iv) Information about programs or resources, such as treatment centers, residential facilities, vocational training services, educational and rehabilitative programs, and other programs that might be incorporated in an individual offender’s sentence;

(v) Information assessing the physical, psychological, economic, or social effects of the offense on any person against whom the offense was committed;

(vi) A description of the authorized types of sanctions and the ranges of severity, and reference to the guidance applicable to sentencing in the case;

(vii) An assessment of the impact of possible sanctions and collateral consequences upon an organizational offender, including employees, creditors and other third parties who would be directly affected by the sanctions;

(viii) A summary of the most significant aspects of the report and, if the sentencing court has so requested, a recommendation as to the appropriate sentence.

(c) A statement prepared by a victim under Standard 18-5.10 should be included as an attachment to the presentence report.

Standard 18-5.5 Timing of investigation and report

(a) The rules of procedure should provide that a presentence investigation must not be initiated until there has been a determination of guilt, unless the defendant, with the advice of counsel, has consented to such action.

(b) When a presentence investigation has been initiated prior to determination of guilt, the rules should provide that:

(i) In a case being tried, adequate precautions must be taken to assure that nothing disclosed by the investigation comes to the attention of the prosecution, the defense, the court, or the jury prior to a determination of guilt;

(ii) In a case in which a defendant has offered a plea of guilty, on request of the defense or the prosecution, the court should be authorized to examine the report prior to determining whether to accept the plea.

Standard 18-5.6 Confidentiality of presentence report

(a) The rules of procedure should provide that a presentence report not be made part of a public record and should be available only to the following persons or agencies under the conditions stated:

(i) The report should be available to the parties.

(ii) The report should be available to the sentencing court for the purpose of assisting it in determining the sentence.

(iii) The report should be available to all judges who participate in a sentencing council consideration of the case.

(iv) The report should be available to reviewing courts where material to an issue on which an appeal has been taken.

(v) The report should be available to the department or bureau responsible for supervision of offenders or with custody of individual offenders.

(vi) Reports should be available to sentencing guideline commissions or other bodies charged with performance of the intermediate function.

(b) Upon order of court, reports should be made available to persons or agencies having a legitimate professional or academic interest in the information likely to be contained therein. Examples of such persons or agencies would be a physician or mental health professional appointed to assist the court in sentencing, an examining facility, a correctional institution, or a probation or parole department.

Standard 18-5.7 Disclosure of report to parties

(a) The rules of procedure should entitle the parties to copies of the written presentence report and any similar reports.

(b) The rules should provide that the information made available to the parties must be disclosed sufficiently prior to the sentencing hearing to afford a reasonable opportunity for challenge and verification of material information in the report.

(c) All communications to a court by the agency responsible for preparing the presentence report should be in writing and subject to the right of the parties to know the content of the report. The rules should prohibit confidential sentencing recommendations.

Standard 18-5.8 Disputes regarding information in report; stipulations; presentence conferences

(a) The rules of procedure should require each party to notify the opposing party, the court, and the preparer of the presentence report in writing of any part of the report which the party intends to controvert or supplement. Such notice should be required at a time sufficiently in advance of the sentencing hearing to permit the preparer of the report to make an appropriate response.

(b) The rules should permit the parties to stipulate to a resolution of challenges to information in the report. The rules should provide that the resolution of any issue by stipulation must be preserved as part of the record of the sentencing proceedings.

(c) The rules should authorize a sentencing court to conduct a presentence conference to consider the possibility of a stipulation of the parties as to challenged information in the presentence report.

Standard 18-5.9 Notice to victims

(a) The rules of procedure should establish a mechanism for providing notice to victims of offenses of all important steps in the sentencing process. Notices should include information about victims’ rights to participate in sentencing proceedings.

(b) If a victim is dead or unable to participate in sentencing proceedings, victims’ rights should be afforded to the victim’s heirs or guardian.

Standard 18-5.10 Victims’ statements prior to sentencing hearings

(a) The rules of procedure should authorize victims to make statements concerning the physical, psychological, economic, or social effects of the offense on the victim or the victim’s family.

(b) The rules should require offices that prepare presentence reports to receive statements written by victims and to attach the statements to presentence reports.

Standard 18-5.11 Victims’ statements at sentencing hearings

(a) The rules of procedure should ensure that victims are permitted to make oral statements at sentencing hearings concerning the physical, psychological, economic, or social effects of the offense on the victim or the victim’s family.

(b) The rules should require that, on motion of either party or on the court’s own motion, the sentencing hearing be continued to permit the parties reasonable opportunity to respond to new issues of fact raised by the victim’s statement.

Standard 18-5.12 Evidentiary effect of victims’ statements

(a) A victim should be permitted to make a statement prior to or at the sentencing hearing without being put under oath as a witness.

(b) Information in a victim’s unsworn statement should not be used as the basis for a finding of fact by the sentencing court.

(c) The right of a victim to make an unsworn statement should not preclude a victim being called as a witness at the sentencing hearing.

Standard 18-5.13 Designation of sentencing judge

The rules of procedure should provide that the judge who presided in the guilt determination phase of a case should, if feasible, be the judge to preside in sentencing proceedings.

(i) If guilt was determined after a trial, the judge who presided at the trial should preside in sentencing proceedings unless there are compelling reasons in a specific case to provide otherwise.

(ii) If guilt was determined by plea, the judge who accepted the plea should preside in sentencing proceedings unless the system of rotating assignment of judges in a multi-judge court makes that unfeasible.

Standard 18-5.14 Time of sentencing

(a) The rules of procedure should ensure that sentencing proceedings take place as soon as practicable following determinations of guilt. Stated time limits, subject to extensions for cause, should be incorporated in the rules. A sentencing proceeding may be deferred to permit consolidation of multiple offenses.

(b) The rules should ensure that the calendar of sentencing proceedings is under the active control of the sentencing court.

Standard 18-5.15 Notice of possible departure from presumptive sentence

(a) The rules of procedure should require the parties, at a stated time before the sentencing hearing, to give notice in writing of intent to request the sentencing court to impose sanctions of lesser or greater severity or types of sanctions different from the presumptive sentence for the offense of conviction. The notice should state the grounds for the request.

(b) The rules should require a sentencing court, considering on its own initiative imposition of sanctions of lesser or greater severity or types of sanctions different from the presumptive sentence for the offense of conviction, to notify the parties and allow a reasonable time for response.

Standard 18-5.16 Consolidation of multiple offenses for sentencing; disposition of other charges

(a) The rules of procedure should provide that all outstanding convictions within the jurisdiction of the sentencing court or any other court of coordinate or inferior jurisdiction be consolidated for sentencing in a single sentencing proceeding.

(b) The rules should permit a sentencing proceeding to be deferred to permit prompt disposition of other charges pending against the offender within the jurisdiction of the sentencing court or any other court of coordinate or inferior jurisdiction and, if convictions ensue, consolidation of all convictions under (a).

(c) The rules should provide that, notwithstanding other venue requirements, a sentencing proceeding may be deferred to permit an offender, charged with other offenses within the jurisdiction of the sentencing court or any other court of coordinate or inferior jurisdiction in the same state, to enter a plea of guilty to some or all of those charges in the sentencing court for purposes of consolidation of offenses in the sentencing proceeding.

(i) The rules should provide that permission to plead guilty in the sentencing court shall not be allowed without the written consent of the official responsible for prosecution of the charge.

(ii) The rules should provide that submission of a guilty plea under these circumstances is a waiver by the defendant of venue provisions that would otherwise apply and, where formal charges have not yet been filed, a waiver of the right to a formal charge.

Standard 18-5.17 Sentencing hearing

(a) The rules of procedure should provide that counsel for both parties, the offender, and the victim have the opportunity to present submissions material to the sentence to the sentencing court.

(i) Both parties should be permitted to present evidence and information, to confront and cross-examine witnesses for the other side, and to offer rebuttal evidence and information to that adduced by the other side, contained in the presentence report, or otherwise presented to the sentencing court.

(ii) Both parties should be permitted to present argument on (A) the relevance and accuracy of any evidence or information presented to the sentencing court, (B) the application to the sentence determination of statues and guidance by the agency performing the intermediate function, and (C) the type of sanction and the level of severity of sanction appropriate to the sentence determination.

(iii) The victim should be permitted the right to make an unsworn statement.

(iv) The offender should be permitted the right of allocution.

(b) The rules should require the prosecutor and the defense counsel to disclose to the court any agreement, in connection with a plea of guilty or nolo contendere, that included a provision on the sentence.

Standard 18-5.18 Findings of the sentencing court

(a) The rules of procedure should provide that the sentencing court resolve issues of fact material to the sentence to be imposed.

(i) The standard of proof on all issues of fact should be by a preponderance of the evidence.

(ii) The court may treat the unchallenged factual information in a presentence report as accurate.

(iii) The court may consider facts proven at the trial of the offender or facts established on the record of the acceptance of a plea.

(b) The rules should provide that the sentencing court make express findings on all disputed issues of fact material to the determination of the sentence imposed.

Standard 18-5.19 Imposition of sentence

(a) The rules of procedure should provide that sentence be imposed in open court in the presence of the offender.

(b) The rules should provide that a sentencing court, when imposing sentence, should state or summarize the court’s findings of fact, should state with care the precise terms of the sentence imposed, and should state the reasons for selection of the type of sanction and the level of severity of the sanction in the sentence.

(i) The statement of reasons may be relatively concise when the level of severity and type of sanction are consistent with the presumptive sentence, but the sentencing court should always provide an explanation of the court’s reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.

(ii) If the sentencing court imposes a sanction other than total confinement, or in addition to total confinement, the court should ensure that the offender is informed, in detail, of the officer’s responsibilities and obligations and, in general, of possible consequences of noncompliance with the terms of the sentence.

(iii) If the sentencing court imposes a sanction of total confinement, the court should inform the offender of the amount of credit the offender is entitled to receive for time already spent in custody and should ensure that the record accurately reflects time served.

(c) The rules should provide that the sentencing court should integrate the sanctions of a current sentence with the remaining operative sanctions under any prior sentence of the offender.

(d) The rules should require the sentencing court to inform the offender of the right to appeal and of the time limits and procedures for initiating an appeal.

(e) The rules of procedure, or other rule of court, should require the attorney representing an offender at a sentencing proceeding to advise the offender regarding possible appeal and to take the necessary steps to protect an offender’s decision to initiate an appeal.

Standard 18-5.20 Record of sentencing proceedings

The rules of procedure should require a sentencing court to make a complete record of the sentencing proceeding. The record should include the following:

(i) A verbatim account of the entire sentencing proceeding, including all testimony received, statements made by defense counsel, the prosecutor, the offender, or the victim, and the statements of the sentencing court imposing and explaining the reasons for the sentence;

(ii) A verbatim account of such parts of the trial on the issue of guilt, or proceedings leading to the acceptance of a plea of guilty, as are material to the sentencing decision; and

(iii) A copy of the presentence report and of any other reports or documents made available to or used by the sentencing court in determining the sentence.

Standard 18-5.21 Sentence reports

(a) The rules of procedure should require that, following sentencing in all cases, a designated court official compile a standardized report that includes:

(i) Offense of conviction and the initial charge,

(ii) Characteristics of the offense and victim information,

(iii) Personal characteristics of the offender,

(iv) Disposition by bench trial, jury trial, or plea, and

(v) The sentence imposed.

(b) The rules should establish appropriate measures to protect the privacy of offenders or victims with regard to information, included in sentence reports, that is not otherwise a matter of public record.

Standard 18-6.1 General principles

(a) The sentence imposed should be no more severe than necessary to achieve the societal purpose or purposes for which it is authorized. The sentence imposed in each case should be the minimum sanction that is consistent with the gravity of the offense, the culpability of the offender, the offender's criminal history, and the personal characteristics of an individual offender that may be taken into account.

(b) A sentencing court should be guided in exercise of its sentencing discretion by standards promulgated by the agency performing the intermediate function. Courts should give serious consideration to the goal of avoidance of unwarranted and inequitable disparities in sentences.

Standard 18-6.2 Considering types of sanctions; composite sentences

(a) A sentencing court should consider all permitted types of sanctions and, subject to the guidance of the agency performing the intermediate function, should select the type of sanction or sanctions that is most appropriate for the gravity of the offense, the culpability of the offender, the offender’s criminal history, and the personal characteristics of an individual offender that may be taken into account.

(b) In shaping a sentence that is a composite of different type of sanctions, a sentencing court should determine the level of severity for each type of sanction so that the composite sentence is no more severe than necessary to achieve the societal purposes for which it is imposed and does not result in unwarranted and inequitable disparities in sentences.

Standard 18-6.3 Using presumptive sentences: mitigating and aggravating factors and personal characteristics of individual offenders; criminal history

(a) In determining the sentence of an offender, a sentencing court should consider first the level of severity and the types of sanctions that are consistent with the presumptive sentence. The court should then consider any modification indicated by factors aggravating or mitigating the gravity of the offense or the degree of the offender’s culpability, by personal characteristics of an individual offender that may be taken into account, or by the offender’s criminal history.

(b) Following guidance of the agency performing the intermediate function, a sentencing court should take into account an offender’s acknowledgment of responsibility or cooperation with the prosecution.

Standard 18-6.4 Sentencing to total confinement

(a) A sentencing court should prefer sanctions not involving total confinement in the absence of affirmative reasons to the contrary. A court may select a sanction of total confinement in a particular case if the court determines that:

(i) the offender caused or threatened serious bodily harm in the commission of the offense,

(ii) other types of sanctions imposed upon the offender for prior offenses were ineffective to induce the offender to avoid serious criminal conduct,

(iii) the offender was convicted of an offense for which the sanction of total confinement is necessary so as not to depreciate unduly the seriousness of the offense and thereby foster disrespect for the law, or

(iv) confinement for a very brief period is necessary to impress upon the offender that the conduct underlying the offense of conviction is unlawful and could have resulted in a longer term of total confinement.

(b) A sentencing court should not select a sanction of total confinement because of community hostility to the offender or because of the offender’s apparent need for rehabilitation or treatment.

Standard 18-6.5 Sentencing for more than one offense

(a) A sentencing court should impose a sanction appropriate to the offense of conviction and should not consider other offenses of which the defendant was not charged, which were dismissed prior to determination of guilt, or of which the defendant was acquitted.

(b) In sentencing an offender convicted of multiple offenses, a sentencing court ordinarily should impose a consolidated set of sentences that appropriately takes into account the offender’s current offenses and criminal history.

(i) a sentencing court should not increase the severity of the sentence or change the type of sanction merely as a result of the number of counts or charges made from a single episode, and

(ii) where the separate offenses are not merged for sentencing, a sentencing court should consider imposition of sanctions of a type and level of severity that take into account the connections between the separate offenses and, in imposing sanctions of total confinement, ordinarily should designate them to be served concurrently.

(d) In sentencing an offender for an offense graded by the amount of money or property involved, a sentencing court ordinarily should determine the appropriate sentence by treating the offenses as a single offense and determining its gravity by cumulating the amounts of money or property in the separate offenses.

(e) In sentencing an offender for multiple offenses not within (c) or (d), a sentencing court should be guided by the presumptive sentence derived by reference to the sentence appropriate for the most serious current offense. Under guidance from the agency performing the intermediate function, a sentencing court may impose an enhanced sentence by treating other current offenses as part of an offender’s criminal history or as factors aggravating the most serious offense.

(f) When multiple sentences of total confinement are to be served consecutively, a sentencing court should impose sentences that do not exceed a total term reasonably related to the gravity of the offenses.

(g) In sentencing an offender who is subject to service of a prior sentence, a sentencing court should take into account the unexecuted part of the prior sentence in shaping a consolidated set of sentences

PART VII. Change of Sentence

Standard 18-7.1 Authority to reduce the severity of sentences

(a) The rules of procedure should authorize a sentencing court, upon motion of either party or on its own motion, to reduce the severity of any sentence. The rules should restrict the time for reduction in severity of a sentence to a specified period after imposition of a sentence.

(b) The rules should prohibit ex parte communications with the sentencing court regarding reduction of sentence and should ensure that both parties receive notice of any proposed reduction.

(c) The rules should prohibit reduction in the severity of a sentence unless the sentencing court reopens the sentencing hearing and follows the procedures in Standards 18-5.17 through 18-5.21.

Standard 18-7.2 Authority to modify requirements or conditions of sentences in light of changed circumstances

(a) The rules of procedure should authorize a sentencing court, at any time during the period that the court has retained jurisdiction over a sentenced offender, to modify the requirements or conditions of a sanction to fit the present circumstances of the offender. Such sentences include:

(i) a sentence to a compliance program,

(ii) a sentence involving an economic sanction,

(iii) a sentence to an acknowledgment sanction, or

(iv) an intermittent confinement sanction.

(b) The rules should provide that any modification of the requirements or conditions of a sentence under this authority may not increase the overall severity of an offender’s sentence.

(c) The rules should provide that either party may move for modification of sentence or the sentencing court may act on its own motion. The rules should prohibit ex parte communications with the sentencing court regarding modification of a sentence and should ensure that both parties receive notice of any proposed modification with opportunity to respond.

Standard 18-7.3 Legislative authority to resentence offenders for violation of the requirements or conditions of sentences

(a) The legislature should authorize a sentencing court to resentence an offender, previously sentenced to a compliance program or a sentence involving an economic sanction, an acknowledgment sanction, or an intermittent confinement sanction, upon finding that the offender has committed a substantial violation of a material requirement or condition of the previous sentence.

(b) The legislature should provide that the effect of noncompliance or nonpayment should be determined after offenders’ defaults and after examination of the reasons therefor.

(c) The legislature should provide that the sanctions available to a sentencing court imposing a resentence include all sanctions that were available at the time of the initial sentencing, although separate guidance by the agency performing the intermediate function may be appropriate.

(d) The agency performing the intermediate function should guide sentencing courts in the appropriate use of the authority to resentence offenders.

(i) A sentencing court should consider first whether an offender’s noncompliance or nonpayment is excusable and whether substantial performance of the initial sentence can be achieved by exercise of legal power to compel or induce performance, particularly by use of measures, including civil contempt, for enforcement of economic sanctions.

(ii) A sentencing court should not sentence an individual offender to total confinement unless the conditions of Standard 18-6.4 are met. Incarceration should not automatically follow noncompliance. In the event of nonpayment of an economic sanction, total confinement should not be imposed unless the offender willfully refused to pay or failed to make sufficient bona fide efforts lawfully to acquire the resources to pay.

(iii) A sentencing court should determine explicitly the extent to which an offender’s substantial compliance with the requirements or conditions of the initial sentence is to be credited toward the requirements or conditions of a resentence. In determining the severity of a resentence, a sentencing court should take into account an offender’s substantial compliance with the initial sentence that cannot be credited toward a resentence.

(e) The legislature should prohibit sentencing courts from setting the terms of a resentence prior to finding of a violation of a requirement or condition of the initial sentence. The initial sentence should not specify the terms of a resentence in the event that the offender violates the primary sanction.

Standard 18-7.4 Procedures regarding violations of requirements or conditions of sentences

(a) The legislature should provide that offenders should ordinarily be called by summons to appear before the sentencing court to respond to charges of violation of a requirement or condition of sentence.

(b) The legislature should authorize arrest of an individual offender pursuant to a warrant of arrest if the court issuing the warrant finds probable cause to believe that:

(i) the offender has committed a substantial violation of a material requirement or condition of a sentence, and

(ii) the offender is not likely to respond to a summons to appear before the sentencing court.

(c) The legislature should authorize arrest without a warrant when the officer making the arrest has reasonable cause to obtain a warrant of arrest and reasonably believes that arrest is necessary to prevent the offender’s flight.

(d) Legislation or a rule of procedure should direct that, upon arrest and detention of an offender for alleged violation of a sentence not involving total or intermittent confinement, a preliminary hearing should be held promptly to determine whether there is probable cause to believe that the offender has committed a substantial violation of a material condition of the sentence and that continued detention of the offender is necessary.

(e) Legislation or a rule of procedure should direct sentencing courts to hold hearings, within a reasonable time after preliminary determinations of probable cause, and promptly make final determinations whether the offender committed the alleged violation, provided, however, that final determination of an allegation of the commission of another offense should be made as provided in (h).

(f) The rules of procedure should provide that, at the preliminary or final hearing

(i) the offender should receive adequate notice of the alleged violation, including a description of the surrounding facts and circumstances, and of the offender’s rights at the hearing;

(ii) the offender should receive adequate notice of the alleged violation, including a description of the surrounding facts and circumstances, and of the offender's rights at the hearing;

(iii) the offender should be entitled to representation by counsel and, if indigent, to have counsel appointed; and

(iv) both the prosecution and the offender should be permitted to subpoena witnesses, call and cross-examine witnesses, offer other evidence, and present arguments.

(g) The rules should provide that, with respect to the final hearing:

(i) the offender is entitled to discovery of all evidence intended to be used by the prosecution to show that a violation has occurred and to have access to all official records concerning the offender’s case;

(ii) the prosecution must establish a violation by a preponderance of the evidence;

(iii) the offender should be allowed to show mitigating circumstances or other reasons why the violation should not result in a resentence;

(iv) the sentencing court should make explicit findings on all material issues of fact, and a statement of the court’s reasons for its determination;

(v) the sentencing court should make and preserve a full and complete record of the hearing; and

(vi) the offender has the right to appeal a resentence to the same extent as any other sentence.

(h) When an alleged violation is based solely on the alleged commission of another offense, the rules should provide that the final hearing on the alleged violation ordinarily should be held after disposition of the new criminal charge.

PART VIII. Appelate Review of Services

Standard 18-8.1 Jurisdiction to review sentences; reviewing courts

(a) The legislature should authorize appellate courts to entertain appeals of sentences. This should include:

(i) Review of a sentence imposed upon conviction based on a plea of guilty or the equivalent;

(ii) Review of a resentence following violation of the requirements or conditions of a prior sentence; and

(iii) Review of a resentence following reversal of a prior sentence by an appellate court and remand for resentencing.

(b) The legislature should authorize appellate review of sentences in the same courts empowered to entertain appeals from convictions. Specialized courts to review sentences only should not be established.

Standard 18-8.2 Purpose of appellate review

(a) The legislature should identify the following objectives of sentence review:

(i) To determine whether a sentence is unlawful or excessively severe under applicable statutes, provisions guiding sentencing courts, rules of court, or prior appellate decisions;

(ii) To determine whether the action of the sentencing court was an abuse of discretion; and

(iii) To interpret statutes, provisions guiding sentencing courts, and rules of court as applied to particular sentencing decisions and to develop a body of rational and just principles regarding sentences and sentencing procedures.

(b) Reviewing courts, and particularly the highest court of the state, should seek to make effective the legislature’s public policy choices regarding sentencing. Reviewing courts should also seek, through case law, to develop principles for composite sentences.

Standard 18-8.3 Appeals by defense or prosecution

The legislature should authorize appeals from sentence at the initiative of the offender or the prosecution.

Standard 18-8.4 Disposition by reviewing court

(a) The legislature should authorize reviewing courts to:

(i) Affirm the sentence under review;

(ii) Reverse the sentence under review and remand the case to the sentencing court for resentencing;

(iii) Substitute for the sentence under review any other disposition that was available to the sentencing court.

(b) A reviewing court should set forth the basis for its decisions.

PART IX. Disputed Terms of Total Confinement

Standard 18-9.1 Mechanism for resolving disputes about the length of a total confinement sentence

The legislature should designate an agency in the executive branch to resolve disputes about the correct date of release of offenders serving sentences of total confinement.