Except for minor offenses, such as infractions, the law gives the judge a great deal of latitude in determinging the sentence. The character and circumstances of the defendant can be as important as the severity of the crime determining what sentence will be imposed.
Procedurally, the sentence is imposed after a separate hearing, held at least two days after judgment has been rendered by the jury or the judge, unless the defendant waives this right. At the sentencing hearing, both sides have the opportunity to present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense counsel have agreed to a sentence as a part of a plea agreement. In that event, the defendant may be allowed to withdraw his/her plea.
Presentence Investigation Report
In addition to the information supplied by parties, the judge is typically supplied with a presentence investigation report. A presentence investigation may be ordered in any criminal case. However, presentence investigations are not typically provided in misdemenaor criminal matters because there are not sufficient presentence investigators in the Department of Corrections to provide this support. In a felony case, the judge may state his/her reasons on the record for failing to order a presentence investigation.
The presentence investigator interviews the defendant and often other individuals such as relatives, friends, and employers. With that information, the presentence investigator compiles a social history of the defendant which covers the defendant's education, employment record, family situation, physical and mental health, and community ties. The presentence investigator will also assemble the defendant's prior criminal record, the defendant's version of the facts surrounding the crime, and the police and other witnesses' verion of those facts.
In appropriate cases, the investigator will recommend alternatives for rehabilitation such as counseling but the report does not contain a recommendation on the length of the sentence. The prosecution and defense typically have access to the presentence report prior to the sentencing hearing. Either side may present evidence to rebut or supplement the presentence investigation report. The report is not available to the media or the public.
If a formal presentence investigation has not been ordered, the judge will at least be supplied with the defendant's prior criminal record and may ask the defendant and his/her lawyer to prepare an informal presentence report.
At the conclusion of the presentence hearing, the judge must give the defendant an opportunity to speak on his/her own behalf. Then the judge pronounces the sentence. The length of the sentence imposed must be within the statutory minimum and maximum time prescribed by law for that offense but the type of sentence is up to the judge's discretion with a few important qualifications. Statutory minimum and maximum for most crimes are included in case law. For example, the habitual criminal or persistent violator outlined in Idaho Code section 19-2514 is imposed when a person is convicted of three or more felonies and is considered a persistent violator in this situation and the individual is subjected to a sentence of at least five years to life.
In all non-capital cases (offenses not punishable by death), the judge may withhold judgment. In that case, no judgment of conviction is entered unless the conditions of the withheld judgment are violated by the defendant. Upon satisfactory completion of a supervised or non-supervised probationary period, the case against the defendant will be dismissed.
The conditions imposed upon the defendant during the probationary period may be simply that he/she stay out of trouble with the law. Other common probation conditions include restitution to the victim, completion of a drug/alcohol-related program, performance of volunteer services, and reimbursement to the county of the cost of that individual's prosecution, including the cost of the public defender if one was appointed.
A less common condition is that the defendant serve some jail time before the case is dismissed. At the end of the probationary period, the defendant or his/her probation officer may petition the court to dismiss the case. However, in the event of a subsequent arrest, the facts of the previous withheld judgment will be known to the presentence investigator by consulting the withheld judgment file maintained by the Idaho Supreme Court. The file maintained by the Supreme Court does not include information about withheld judgments entered on felony cases.
Probation or Suspended Sentence
The judge may enter judgment against the defendant and then sentence him/her to probation for a period not to exceed the maximum sentence provided for the offense or he/she may impose a sentence with all or part of the sentence suspended. In either event, if the defendant violates the condition of the probation or sthe suspension, usually by a subsequent arrest, the defendant may be ordered to serve out the remainder of the probationary period as stated in the original sentence.
These sentencing alternatives are preferred over going to prison or jail because they are cheaper and because it is believed that the chance for rehabilitation has improved. They may be, and usually are, conditional with conditions being similar to those for probation following withheld judgment.
Frequently, judges will retain 180-day jurisdiction over the defendant. That means that although the judge has imposed a prison sentence, the judge may alter or suspend that sentence after the 180-day period has been completed in which the judge retained jurisdiction. The 180-day period can be extended for an additional 60 days by application of the Board of Corrections.
During the retained jurisdiction period, an alternative available only for felony cases, the defendant will first spend two weeks in a diagnostic unit of the penal system. If it is determined there that the defendant is not dangerous, the defendant will go on to the North Idaho Correctional Institution at Cottonwood, Idaho. There, the defendant will undergo psychiatric and other testing and may participate in rehabilitation programs. At the end of the retained jurisdiction, the judge will decide, based upon the Board of Corrections' evaluation of the defendant's performance during the period, whether the remainder of the sentence shall be suspended.
Concurrent vs. Consecutive Sentences
This issue arises when the defendant is already under sentence as well as in sentencing for multiple offenses.
If the defendant is sentenced to two or more concurrent sentences, he/she will not serve more than the longest of those sentence terms. The impact of the additional concurrent sentences will be on his chances for parole. Although the parole board will look only to the lenth of the longest sentence for the purpose of scheduleing an appearance before the board, it will take the addtional sentences into consideration in determining whether to grant the parole.
In the case of consecutive sentences, the defendant will not begin to serve the later sentences until the earlier sentences have been completed or paroled.
First degree murder, first degree kidnapping, and child murder carry the death penalty in Idaho. Whether the death or life imprisonment will be imposed is decided solely by the judge. The jury only decides guilt or innocence and not the issue of punishment. After the verdict of guilty plea in a first degree murder case, a hearing must be held on the aggravating and mitigating circumstances surrounding the murder. It is at this time that circumstances such as the individual's background, relationship with his/her family, and the circumstances that may have surrounded the crime are discussed. If the death sentence is imposed, the sentence must be executed by lethal injection.