Sentencing in a D.C. criminal case

The imposition of penalty after a conviction – that is, the “sentencing” of a defendant – is a critical stage of a criminal trial. 

To the extent the sentence affects the defendant’s liberty, reputation and future, it can in fact be the most important phase.  United States v. Hamid, 531 A.2d 628, 643 (D.C. 1987).  As a result, a defendant facing sentencing is guaranteed many constitutional rights, including the right to counsel. 

Imposition of Sentence

A sentence typically includes a period of incarceration to be followed by a period of supervised release and/or probation.  All or a portion of the incarceration can be “suspended”; that is, the defendant will only serve that portion of the sentence in jail.  D.C. Code § 16-710.

For example, say that the court imposes a sentence of 180 days of incarceration, execution of sentence suspended (ESS) as to all but 120 days.  This means that the defendant will serve the 120 days, minus any time he/she has already spent in custody. 

The unserved portion of 60 days – the defendant’s “back time” – will only be served if the court finds after notice and a hearing that the probationer has failed to comply with the conditions of release.

Although the punishment must fit the crime, see Bradley v. District of Columbia, 107 A.3d 586, 588 (D.C. 2015), the court is allowed to factor in a broad range of considerations, “largely unlimited either as to the kind of information [it] may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446 (1972). 

In addition to jail time or probation, the court can also order, among other things, restitution (D.C. Code § 16-711.01) or community service (D.C. Code § 16-712). 

Sentencing guidelines

Although each criminal offense has a statutory maximum (the maximum offense for Carrying a Pistol with a License, for example, is 5 years), it is rare for a court to impose the maximum. Instead, for felony offenses, the court will typically impose a sentence within the guidelines developed by the D.C. Sentencing Commission. 

The guidelines reflect two considerations:  the severity of the offense and the defendant’s criminal history score. 

Click here for the sentencing and drug sentencing grids.  

Concurrent versus consecutive sentences

A concurrent sentence means that two or more sentences would run at the same time. For example, if a defendant were to be sentenced to 15 years in jail on one count and 5 years in jail on the other, both sentences would begin at the same time.  The total amount of time the person would spend in jail would be 15 years. 

A consecutive sentence would mean that two or more sentences would run back-to-back; that is, one right after the other.  One sentence would not begin until the other sentence had concluded.  In the case of a defendant who is sentenced to 15 years on one count and 5 years on the other, the total prison sentence for the person would be 20 years.

Although the judge typically enjoys considerable discretion in determining an appropriate sentence, there are some instances in which either a consecutive or concurrent sentence is mandatory under the sentencing guidelines.  See Chapter 6 of the Sentencing Guidelines. 

Mandatory versus statutory minimum sentences

A “minimum sentence” is defined as the “least amount of time that a defendant must serve in prison before becoming eligible for parole.”

In D.C., there is then the distinction between a mandatory minimum sentence and a statutory minimum sentence.  Both types of sentences involve a term of imprisonment that must be imposed.  The court has no discretion to sentence the defendant to a lesser sentence.  

The difference is that, in the case of a statutory minimum sentence, the court can suspend all or a portion of the required sentence.  In other words, the defendant does not need to actually serve that time in jail.  Instead, the time is left “hanging over the defendant’s head”; that is, the court can impose up to that amount of jail time were the court to find after a hearing that defendant to violates conditions of his or her release.

By contrast, the court has no discretion to suspend any of the jail time associated with a mandatory minimum sentence.  

Criminal offenses that provide for mandatory minimum sentences include first-degree murder (30 years); armed carjacking (15 years); carjacking (7 years); crimes of violence and dangerous crimes while armed with a firearm (5 years for first conviction and 10 years for subsequent convictions); possession of a firearm during a crime of violence/dangerous crime (5 years); felon in possession of a firearm (1 year); theft I or theft II if two or more theft convictions (1 year); possession of armor piercing ammunition.  

Split sentences

A split sentence is one in which part of the sentence is spent in jail and the remainder on supervised release or probation.  

According to the D.C. sentencing guidelines, a “compliant short split sentence” is one in which the court imposes a sentence within the applicable prison range but suspends execution of all but six months or less (but not all of it).  D.C. Sentencing Guidelines § 7.32.

A “compliant long split” sentence is one in which the court imposes a sentence within the applicable sentencing range but suspends all but a portion of time that falls within the lower end of the sentencing guidelines.  For example, if the sentencing guidelines called for a sentence of 24-66 months, a compliant long split sentence would be one that calls for a period of incarceration of at least 24 months.

Credit for Time Served

“Time served” refers to the amount of time the defendant has spent in custody.  This includes any time the defendant may have spent in custody the night of his/her arrest, any other time prior to trial and then, of course, post-sentencing. 

For example, assume the defendant was arrested on a Saturday and then not released until he/she appeared before a judge the following Monday.  That would account for three days of time credit.  If the defendant was later found guilty and sentenced to 30 days in jail, that would mean the defendant had only another 27 days to serve. 

Time Served Sentence

A “time served” sentence means that the defendant’s punishment will be capped at the amount of time the defendant has already spent in custody.  In other words, it means that the defendant will be released. 

Sentencing enhancements

A sentencing enhancement is an upward adjustment of a sentence on the basis of certain aggravating factors.  For example, a second conviction for Carrying a Pistol Without a License doubles the penalty from 5 years to 10 years. 

“Allocution” at sentencing

The prosecutor, defense counsel, and defendant are all allowed to address the judge prior to sentencing.  The typical allocution explains why a particular sentence is requested.  

Victims’ impact statement

In any case in which a defendant has been found guilty of a crime involving a victim, the victim “must be given a reasonable opportunity prior to imposition of sentencing to submit a victim impact statement” as laid out in D.C. Code § 23-1904.  D.C. Superior Court Rule of Criminal Procedure 32(a)(2).  

Motion to correct or reduce sentence

According to Rule 35(b)(1) of the D.C. Superior Court Rules of Criminal Procedure, a defendant has 120 days after a sentence has been imposed to request a reduction in that sentence.   Changing of a sentence from incarceration to probation is permissible. D.C. SCR 35(b)(3).