Judges, not juries, determine punishments for a crime (in capital punishment cases, the jury usually decides whether to recommend death or life in prison).

The Eighth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In addition to the sentencing prohibitions contained in the Constitution, Title 18 of the United States Code, Part II (Criminal Procedure), Chapters 227 (Sentences), 228 (Death Sentence), and 232 (Miscellaneous Sentencing Provisions) also govern sentencing in federal courts. Similarly, state court sentencing procedures are governed by state laws and constitutions as discussed below.

Most crimes are specifically enumerated in constitutions or statutes, and the provision that identifies the specific crime will also identify the appropriate punishment. For example, a statute may read, “Violation of this statute constitutes a misdemeanor, punishable by a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.” Given this range of potential punishment, a judge will then consider certain “aggravating” or “mitigating” circumstances to determine where along the prescribed spectrum a particular criminal’s punishment should fall. Common factors considered by judges include:

• whether the offender is a “first-time” or repeat offender
• whether the offender was an accessory (helping the main offender) or the main offender
• whether the offender committed the crime under great personal stress or duress
• whether anyone was hurt, and whether the crime was committed in a manner that was unlikely to result in anyone being hurt
• whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc.
• (sometimes) whether the offender is genuinely contrite or remorseful

Under Federal Rule of Criminal Procedure 32(a), before imposing a sentence, the court must afford counsel an opportunity to speak on behalf of the defendant. The court will address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The attorney for the government will have an equivalent opportunity to speak to the court. Similar provisions are contained in most state procedural statutes and rules. In many state courts, a victim or the survivors of a victim may also have the opportunity to address the court and recommend leniency or strictness for the sentence.