In almost every criminal case, the judge decides the sentence, not the jury. Whether the jury decides the sentence in a criminal case is really a question about a narrow set of exceptions: the general rule across federal and state courts is that the jury’s job is to decide guilt, and once it returns a verdict, sentencing belongs to the judge. Capital cases are the main departure, a few states let juries set sentences for ordinary felonies, and the Constitution gives the jury a gatekeeping role over certain facts that push a sentence higher. Everything else is on the judge.
Where the Jury’s Job Ends
The Sixth Amendment guarantees anyone accused of a crime the right to trial “by an impartial jury.”1Constitution Annotated. U.S. Constitution – Sixth Amendment The jury acts as the finder of fact: it listens to the evidence, weighs the witnesses, and returns a verdict of guilty or not guilty. Every juror must be firmly convinced the prosecution proved its case beyond a reasonable doubt, and the Supreme Court confirmed in 2020 that the verdict must be unanimous for any serious offense in both federal and state court.2Supreme Court of the United States. Ramos v. Louisiana
Once the verdict is read, the jurors are dismissed. Their part is done. What happens next, the sentencing phase, is almost entirely the judge’s responsibility.
How the Judge Chooses the Sentence
Sentencing rarely happens on verdict day. In most felony cases, the judge schedules a separate hearing weeks or months later. In the meantime, a probation officer prepares a pre-sentence investigation report that gives the judge a detailed picture of the defendant’s background, criminal history, employment, family situation, and the circumstances of the offense.3Office of the Law Revision Counsel. 18 USC 3552 – Presentence Reports That report often includes a recommended sentencing range, and judges rely on it heavily.
Federal law tells the judge what to weigh. The court must impose a sentence “sufficient, but not greater than necessary,” considering the nature of the offense, the defendant’s history and characteristics, the need to deter future crime, public safety, and the sentencing range recommended by the federal sentencing guidelines.4Office of the Law Revision Counsel. 18 USC 3553 – Imposition of a Sentence States use similar statutory frameworks.
At the hearing, both sides argue. The prosecution may press for a harsher sentence; the defense highlights mitigating circumstances. Victims can submit impact statements describing how the offense affected their lives, finances, and well-being, and the judge is expected to consider those before deciding.5Department of Justice. Victim Impact Statements
Before the sentence is announced, the defendant personally gets to address the court. This is called allocution, and federal rules require the judge to speak directly to the defendant and let them say anything that might influence the sentence, whether an apology, an explanation, or a plea for leniency.6Cornell Law School. Federal Rules of Criminal Procedure Rule 32 – Sentencing and Judgment A judge who skips this step risks having the sentence overturned on appeal.
The judge also decides other consequences beyond the length of any prison term: whether multiple sentences run concurrently or consecutively, whether to order restitution to victims (which is mandatory for certain federal offenses like crimes of violence and many property crimes)7GovInfo. 18 USC 3663A – Mandatory Restitution to Victims of Certain Crimes, and what fines or special assessments to impose.
When the Jury Does Affect the Sentence
Death Penalty Cases
The biggest exception to judge-only sentencing is capital cases. The Supreme Court has held that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a death sentence.8Justia. Hurst v. Florida, 577 U.S. 92 In practice, capital trials run in two phases. First, the jury decides guilt. If the verdict is guilty, the case moves to a penalty phase where the same jury hears evidence about aggravating and mitigating circumstances and then decides whether the defendant receives death or life in prison.9Constitution Annotated. Amdt8.4.9.6 Role of Jury and Consideration of Evidence The Court concluded in Ring v. Arizona that a judge sitting alone cannot find the aggravating circumstances that make someone eligible for death.10Justia. Ring v. Arizona, 536 U.S. 584
Facts That Push a Sentence Above the Statutory Maximum
Even outside capital cases, the jury has a constitutional role whenever the prosecution wants to push a sentence above the normal range. The Supreme Court held in Apprendi v. New Jersey that any fact increasing a defendant’s punishment beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.11Cornell Law School. Apprendi v. New Jersey Blakely v. Washington extended the principle: even under sentencing guidelines, a judge cannot impose a sentence above the standard range based on facts the jury never found.12Cornell Law School. Blakely v. Washington
So if a prosecutor wants an enhanced sentence based on an aggravating factor, like the use of a weapon or deliberate cruelty, the jury must specifically find that factor beyond a reasonable doubt. Prior convictions are the one exception; a judge can consider those without jury involvement. The jury decides whether the aggravating facts exist, and the judge decides the sentence within whatever range those facts allow.
States That Let Juries Set Sentences
A small number of states go further and let juries recommend or set sentences for ordinary felonies, not just capital cases. Around six states, including Virginia, Kentucky, Texas, Arkansas, Missouri, and Oklahoma, use some form of jury sentencing in non-capital cases. How much power the jury has varies. In Virginia, the jury selects a specific sentence from the statutory range. In Texas, the judge must follow a jury’s recommendation of probation. In Arkansas, whether jurors are even told probation is an option is left to the judge’s discretion. These states are outliers; almost everywhere else, the jury’s role ends at the verdict.
Limits on the Judge’s Discretion
Judges have broad sentencing power, but not unlimited power. Mandatory minimum laws set a floor the judge cannot go below, no matter how sympathetic the defendant’s circumstances. Congress and state legislatures have imposed these minimums most aggressively for drug trafficking. Under federal law, trafficking certain quantities of controlled substances carries a mandatory minimum of five or ten years depending on the drug and amount, with repeat offenders facing minimums of fifteen or twenty-five years.13Office of the Law Revision Counsel. 21 USC 841 When death or serious injury results, the minimums climb steeply, sometimes to life.
Federal law provides a narrow escape hatch. The “safety valve” lets a judge sentence below a mandatory minimum in certain drug cases if the defendant meets every one of several criteria: limited criminal history, no involvement with violence or firearms, no leadership role in the offense, no death or serious injury resulting from the crime, and full cooperation with the government.14Office of the Law Revision Counsel. 18 USC 3553 – Imposition of a Sentence – Section (f) The First Step Act of 2018 expanded eligibility by loosening the criminal history requirements, but the Supreme Court narrowed that expansion in 2024, holding that a defendant with any disqualifying criminal history characteristic fails the test entirely.
Most Sentences Never Involve a Jury
Everything above assumes the case went to trial. Roughly 90 to 95 percent of criminal cases in both federal and state courts are resolved through plea bargains.15Bureau of Justice Assistance. Plea and Charge Bargaining Research Summary In a plea deal, the defendant pleads guilty, usually to a reduced charge or in exchange for a sentencing recommendation, and no jury ever hears the evidence. The practical answer to who decides the sentence, in most cases, is a negotiation between the prosecutor and defense attorney that the judge then reviews. Depending on the type of plea agreement, the judge may be free to disregard the recommended sentence, or the deal may lock in a specific sentence once the judge accepts it.16Cornell Law School. Federal Rules of Criminal Procedure Rule 11 – Pleas Even in plea cases, the judge reviews the pre-sentence report and retains the power to reject a deal.
Some cases are also tried without a jury at all. In a bench trial, the judge serves as both the finder of fact and the sentencer. A defendant can waive the right to a jury in writing, though in federal court both the prosecution and the judge must agree. When a bench trial ends in conviction, the judge moves straight to sentencing using the same process described above, without any jury involvement.
Appealing a Sentence
A sentence is not always the final word. Either side can appeal after a guilty verdict.17United States Courts. Appeals A defendant might argue the sentence was unreasonably harsh, that the judge miscalculated the sentencing guidelines, or that the judge relied on facts that should have gone to a jury under Apprendi and Blakely. The prosecution can appeal a sentence it believes was unreasonably lenient.
Appellate courts review sentences for abuse of discretion, which is a high bar. The appeals court does not substitute its own judgment for the trial judge’s. It asks whether the judge made a clear procedural error, applied the wrong legal standard, or imposed a sentence so far outside the reasonable range that no rational judge would have chosen it. Most sentences survive appeal. But when a judge fails to consider the required statutory factors, miscalculates the guidelines, or skips a mandatory procedural step like allocution, the appellate court can vacate the sentence and send the case back for resentencing.