Criminal Sentencing FAQ
Who determines what punishment a convicted defendant receives?
1. Who determines what punishment a convicted defendant receives?
Judges, not juries, almost always 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 juries are typically left with the decision as to whether death is appropriate.
When a statute sets out factual circumstances that can produce a harsher sentence (for example, the use of a weapon in the commission of a crime), a judge cannot impose the harsher punishment unless the jury concludes beyond a reasonable doubt that the circumstances were present.