For a criminal defense attorney, the goal is always to avoid a conviction. Sometimes, however, a conviction simply cannot be avoided. When that is the case, a criminal defense attorney’s focus shifts from guilt vs. innocence to sentencing. In fact, in a significant percentage of the cases a defense attorney’s primary purpose is not to defend the client because the prosecution’s case is too strong, but to mitigate the damage when it comes to sentencing. With that in mind, you may be wondering how criminal defense attorneys prepare for sentencing when it is clear that a conviction is forthcoming.
Routes to a Conviction
Although the end result is legally the same, not routes to a conviction are the same nor have the same significance. There are three different ways in which you might be convicted of a criminal offense. The first route is through a plea agreement with the State of Nebraska. In this case, your attorney will negotiate the terms of a guilty plea agreement with the prosecutor. In most cases, the terms of a guilty plea will include the sentence the defendant will receive in exchange for pleading guilty. Sometimes, however, the terms of sentencing will remain open to argument by the parties. This is usually done in exchange for dismissing a more serious offense.
The second and third route to a conviction both involve a trial. You could exercise your right to a trial by jury and be convicted by a jury of your peers. You could also waive your right to a trial by jury and try your case to a judge in what is known as a “bench trial” or “trial by judge.” In that case, the judge decides the issue of guilt.
Who Decides Your Sentence?
Contrary to what many people think, it is a judge, not a jury, that decides a defendant’s sentence almost all of the time. There are some states that do turn to the jury to decide if the death penalty will be imposed, for example, but the rest of the time a judge pronounces sentencing. This remains the case when a plea agreement is entered into as well. Although the parties (the State and the defense) may have negotiated a plea agreement that includes the defendant’s sentencing details, the judge must ultimately accept the agreement and all its terms. If the judge rejects the agreement, the parties must go back to the negotiating table or allow the judge to sentence the defendant.
Preparing for Sentencing – What Can Criminal Defense Attorneys Do?
Most criminal defense attorneys will consider the possibility of a conviction from day one. Consequently, an attorney will be working on mitigating a client’s sentence from day one as well. For example, when your attorney questions you about your background, your job, and your family, he or she is likely doing so with sentencing in mind. Typically, when a judge is deciding on a sentence the judge will consider any aggravating and/or mitigating factors that are present. Aggravating factors are things that make the crime worse than normal while mitigating factors lesson the severity of the crime. For example, factors that might mitigate your sentence include if you cooperated with the authorities, took responsibility for your actions, or suffer from a mental illness. In addition, your attorney will focus on your lack of a criminal history, if applicable, to try and convince a judge that you deserve the chance to be rehabilitated instead of punished. Substance abuse problems can be used as a persuasive argument for rehabilitation as well if you are willing, and eligible, to try treatment in lieu of incarceration. Criminal defense attorneys also look to a defendant’s family and community support when it comes time for sentencing. If you have a good job, ties to a religious organization, or a stable family that you are helping to support, these can all be used to try and pursued a judge to allow you to remain in the community to serve any sentence you receive.
Although you may not want to consider the possibility of a conviction, it is wise to discuss sentencing strategies with your attorney early on so you will be prepared if your case does result in your conviction.
Contact Us
If you have been charged with a criminal offense in the State of Nebraska, it is in your best interest to consult with an experienced Nebraska criminal defense attorney right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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