Almost always, judges determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

Where can the prescribed punishment for crimes be found?

Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, "For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both." Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor, or, in some states, for all misdemeanors.

Do people convicted of the same or similar crimes receive similar sentences?

Some state and all federal criminal statutes include "mandatory sentences," which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures or Congress to their perception of the public's desire to end judicial leniency and treat alike all people who break the same law.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant's past criminal record, age, sophistication, the circumstances under which the crime was committed and whether the defendant genuinely feels remorse. In short, mandatory sentence laws "fit the punishment to the crime"; whereas judges prefer to "fit the punishment to the offender.

How judges determine sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):

• the offender has little or no history of criminal conduct
• the offender was an accessory (helped the main offender) to the crime but was not the main actor
• the offender committed the crime when under great personal stress, for example, had lost a job, rent was due and had just been in a car wreck, or
• no one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating" circumstances can compel a judge to "throw the book at" an offender. A previous record of the same type of offense is the most common aggravating factor. Often, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.