What Happens At A Sentencing Hearing?
If it’s for a felony case prior to the sentencing, the judge, at least in Illinois, and usually in Wisconsin, has to order a pre-sentence investigation which basically is going to be a biography on the person from the day they were born until the date of the sentencing. It’s going to include everything from social, medical, physical, any counseling they’ve had, any work history they’ve had, any employment, whether it’s in the armed forced or outside that, prior criminal record, obviously any prior treatments or any type of mental condition or anything else, family situation, they really cover just about everything in the world. The judge should have a pretty good idea when he’s sentencing the person what this person’s all about, do they deserve a break, should they get the hammer put down?
It all depends on your past really, so they’ll very much consider that and that’s the biggest part. It usually takes like 4 to 5 to 6 weeks, in a very thorough, usually 30 to 40 pages long. At the end of that, the probation/ parole writer will make their recommendations which the judge isn’t bound by, sometimes they listen to them, usually they’re fairly well thought out and reasoned. That gives you some things at least, if you’re the attorney, you can look at that and there are some not favorable things, you can be prepared for those, kind of take the wind out of those fails if that’s possible. That’s what happens prior to the sentencing.
How Long Does The Sentencing Hearing Actually Take?
After you’re found guilty or plead guilty, it’s 4 to 6 weeks because the judge won’t do it without this little biography in front of them. Every sentencing is different. The judge, when he starts out, is going to ask if both parties have read the pre-sentence investigation to either side have any corrections or additions. Then you can point out things that are wrong or if they’ve somewhat the same name and that’s not him or whatever. They’re also going to ask do you have any witnesses in aggravation and they might, they might put in a lot of evidence in aggravation, they could put in evidence of other crimes that he hasn’t been committed yet but it looks like very strongly that the person was guilty of them.
They can put in pretty much everything they want at sentencing, which can be very damning if you got someone that’s got some cases that are still pending but it looks like the evidence is very strongly that they were guilty, you can put in hearsay and all kinds of stuff. It’s up to the judge to realize how much of that you have to skip through and realize they haven’t been convicted yet and there is the presumption of innocence. It’s like parading the pink elephant in the room and then telling the jury to disregard it. Well, the judge has read all of the stuff, he’s heard all of this evidence, they clearly point the figure at your guy, he’s going to consider it whether he’s going to say he is or isn’t.
The judge is going to listen to that. Then in mitigation, we can put on family members to say what the great person they were and their church go in person, their family person, they’ve got no history, they’ve got a great work history, they’ve got all kinds of people that have countered them all their lives etc., you put on everything in the world that paints your client in the best picture so the judge is going to give them the best sentence. After that the state is going to make their sentencing recommendations. The state always goes first. They have the burden of beyond the reasonable doubt, they get to go first in every stage of the proceeding.
After they’ve tried to poison a well, then we come and try to repair the damage and put together our best stuff saying even though the state says this and this, you should consider this and this you shouldn’t. We put on our evidence and hopefully convince the judge they deserve a lenient sentence than what the state suggests, on rare occasions we agree with what the state said but that’s usually rare. Those are all things that happen at the sentencing. Then the judge is going to give the defendant the opportunity to exercise his right of allocution, which means he has a right to address the court and say whatever they want to say. Now, that can be kind of a double-edged sword and you really have to be careful that a good defense attorney would have prepared his clients.
If they are going to say anything, which of course they don’t have to, you have a right to remain silent and that includes at your sentencing. It’s a very sketchy thing, you have to be careful because I’ve had in my experience sometimes people say things that really piss the judge off, or if the judge gets inkling that the person’s being smug, or they’re instant fear, or they’re smiling when they shouldn’t be smiling, it’s a super serious offense or they laughed at the wrong thing or whatever, you’re always taking the risk that your defendant is going to stick his foot in a bucket of shit and basically say the wrong thing. And you never know it’s going to piss off a judge. So if your client insists on making a statement, you want to have a drier run with that first and try and make sure that you avoid those pitfalls. I usually recommend most judges that the client does not make a statement.
Anything that we want to present in our case, present to the judge to say if there’s a more lenient sentence or what seems appropriate, that can be done by the attorney. So no matter what the attorney says, he can’t say, “I didn’t like your client’s attitude and I think he was smug and I don’t think he’s taking it serious”, and this and that. If you’re sitting in quietly and say, “No. Thank you, your Honor. I don’t want to make a statement”, then it’s neutral. It can’t go back. It’s not going to get worse, so then it should be just pretty much hopefully determined by the facts of the case and how it is presented. So I usually pretty much straight across the board recommend the client not say anything because I have seen cases where the judge said, “I was going to give you 2 years in the Department of Corrections but having heard your statement and you’re clearly not taking any responsibility for what you’ve done and you’re trying to point the finger at the victim, I don’t think you have any rehabilitative potential. I am giving you the maximum sentence”. I have seen that happen and it’s just a nightmare.
Sometimes the person was nervous and everything else and they’re not used to addressing the court, that’s something better left off to an experienced attorney. I always highly recommend to my clients not make a statement and politely say they would not like to make any statements, thank you. I have never seen that hurts anybody. Quite contrary, I’ve seen just the opposite. If they’ve opened their mouth and say the wrong thing or they got the wrong attitude in the eyes of the judge, you’re going to take a whooping. There’s nothing you can do about it except sit back there and say, “I messed that up”.
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