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Criminal procedure

sentencing—penalty phase

In a criminal prosecution, if the defendant is convicted the case moves to the penalty or punishment phase of the trial. The penalty or punishment phase of the trial begins with the judge setting a date for sentencing. Before the sentencing a probation officer will conduct a presentence investigation to help the judge determine the appropriate sentence for the defendant from the range of possible sentences provided in the applicable statutes.

The presentence investigation will generally consider the defendant’s prior criminal record, custody status, plea bargain, pending cases, substance abuse history, education history, employment history, marital history, finances, physical health, mental health, gang affiliations, ties to the community, and other relevant factors.

The presentence report makes a recommendation based on how the sentencing guidelines rate the seriousness of the offense—and on the defendant’s criminal history. The judge is not required to follow the recommendations of the probation officer or the parties—but if the judge rejects a sentence agreed to by the defense and prosecution, the defendant may withdraw a guilty plea.

The sentencing hearing is often much like a mini-trial, and both the prosecution and the defense are given a chance to make opening and closing statements and to call witnesses. The court may also hear and consider victim impact statements.

In most states, and in the federal court system, the judge determines the sentence for a convicted defendant—but in some states, the defendant has the right to choose to be sentenced by the judge or the jury. And in most states juries determine the sentence in cases in which the defendant is eligible for the death penalty and the prosecution is seeking the death penalty. And in many states and the federal court system there are sentencing guidelines to assist judges in determining appropriate sentences and to encourage uniformity in sentencing convicted defendants.

In Texas, after a defendant is convicted in a criminal prosecution, the case proceeds to the sentencing phase. A judge will schedule a sentencing date, and a probation officer will conduct a presentence investigation to gather information that will aid the judge in determining an appropriate sentence within the statutory range. The investigation includes an assessment of various aspects of the defendant's life and history, such as criminal record, substance abuse, employment, and mental health, among others. The presentence report provides a recommendation, but the judge is not bound to follow it. If the judge does not accept a plea agreement's suggested sentence, the defendant may have the option to withdraw their guilty plea. During the sentencing hearing, which resembles a mini-trial, both the prosecution and defense can present arguments, call witnesses, and make statements. Victim impact statements may also be considered. In Texas, the judge typically decides the sentence, except in death penalty cases where a jury may be involved. Texas follows sentencing guidelines to promote consistency in sentencing, but judges have discretion within the guidelines' framework.


Texas Statutes & Rules

Federal Statutes & Rules

18 U.S.C. § 3552 - Presentence reports
This statute is relevant because it outlines the process and content of the presentence investigation report, which is used to inform the judge before sentencing.

Under 18 U.S.C. § 3552, the court, upon its own motion or upon the motion of a party, may order a study and report of the defendant prior to sentencing. The report is prepared by a probation officer and includes information about the defendant's characteristics, circumstances, needs, potential for rehabilitation, and the impact of the offense on any victims. The report also includes any prior criminal record and any other relevant information. The statute ensures that the report is disclosed to both the defendant and their attorney, the attorney for the Government, and the court before sentencing. The defendant and their attorney have the right to comment on the report and, subject to the court's discretion, the report may be kept confidential.

18 U.S.C. § 3553 - Imposition of a sentence
This statute is relevant as it provides the factors that a court must consider when determining the appropriate sentence for a convicted defendant.

18 U.S.C. § 3553 outlines the factors that a judge must consider when imposing a sentence. These factors include the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment. The statute also requires the court to consider the kinds of sentences available, the sentencing guidelines, policy statements issued by the Sentencing Commission, the need to avoid unwarranted sentence disparities, and the need to provide restitution to any victims of the offense. The court is not bound by the sentencing guidelines but must consider them and the policy statements, and it must explain any deviation from those guidelines.

18 U.S.C. § 3661 - Use of information for sentencing
This statute is relevant because it allows the court to consider a broad range of information in determining the sentence.

According to 18 U.S.C. § 3661, no limitation is placed on the information concerning the background, character, and conduct of a person convicted of an offense that a court may receive and consider for the purpose of imposing an appropriate sentence. This statute supports the comprehensive nature of the presentence investigation report and ensures that judges can consider a wide array of information, including the defendant’s prior criminal record, personal history, and other relevant factors mentioned in the presentence report.

18 U.S.C. § 3559 - Sentencing classification of offenses
This statute is relevant as it classifies offenses for the purpose of sentencing.

18 U.S.C. § 3559 categorizes criminal offenses into classes ranging from Class A, which are the most serious offenses often punishable by death or life imprisonment, down to Class E felonies and misdemeanors. This classification system is used to determine the statutory maximum penalties for offenses and is a key component in guiding judges during the sentencing phase.

18 U.S.C. § 3771 - Crime victims' rights
This statute is relevant because it outlines the rights of crime victims, including the right to be heard at public court proceedings related to sentencing.

Under 18 U.S.C. § 3771, crime victims are afforded specific rights, including the right to be reasonably protected from the accused, the right to notice of public court proceedings, the right to be heard at proceedings involving release, plea, sentencing, or parole, and the right to full and timely restitution. This statute ensures that victims have a voice in the sentencing process and that their impact statements can be considered by the court.

18 U.S.C. § 3582 - Imposition and modification of sentences of imprisonment
This statute is relevant as it provides the authority for the court to impose a sentence of imprisonment and to modify such a sentence under certain circumstances.

18 U.S.C. § 3582 governs the imposition of a sentence of imprisonment and the conditions under which a sentence may later be modified. It outlines the factors that should be considered in imposing a term of imprisonment and the authority of the court to change a sentence in cases where the Sentencing Commission lowers the sentencing range for a particular offense, among other circumstances. This statute is important for understanding the court's powers and limitations in sentencing and modifying sentences post-conviction.