Sentencing

If a defendant is found guilty, the judge formally pronounces judgment, imposing the punishment and declaring the legal consequences of being found guilty. Maximum and minimum penalties for felonies and misdemeanors can be found online.

If mentioning the maximum sentence in a news story, it is appropriate to mention the minimum.

Discretion

The court has discretion in determining the sentence to be imposed and considers several factors in determining the appropriate sentence:

Age, mentality, education, experience, social and cultural background, past criminal behavior, past law-abiding conduct, motivation for the offense and the nature of the offense.

Pre-Sentence Investigation (PSI)

Before a sentence is imposed, the court may order a PSI performed by the probation office to thoroughly investigate all aspects of the defendant’s life, as well as circumstances of the crime involved, to help the court determine the appropriate sentence. These may include statements of the victim in the case, written statements to the judge from the defendant. They are not open to the public. 

Allocution

Before a defendant is sentenced, they have a right to allocution, where the attorney for the defendant and the defendant have the opportunity to tell the judge what they think is important for the court to be informed of before sentence is imposed.

The prosecution also has an opportunity to be heard.

Four Basic Types of Sentence

• Incarceration
• Probation, supervised or administrative
• Fine
• Combination of the above

Incarceration

Better known as jail, prison or the penitentiary. A judge can sentence a defendant to a determinate or fixed sentence, for example 90 days in county jail on a misdemeanor. Or a judge can give an indeterminate sentence, for instance 5-10 years at the Nebraska Department of Correctional Services. 

If a defendant has multiple charges or cases, a judge will specify if the terms are to be served concurrently (or at the same time) or consecutive (or back to back).

"Good time" (good behavior time) in prison may decrease the sentence by up to one-half. For instance, a person sentenced to 10-20 years on a felony is automatically eligible for parole after serving 5 years (half of the lower number) and, if they don’t parole, can apply again or “jam” their time after serving 10 years (half of the upper number), provided they lost no good time. A person sentenced to prison immediately gets good time up front. However, there is no good time on the portion of a sentence that is mandatory. For instance, first-degree sexual assault of a child charges carry a 15-year mandatory minimum. So if the judge sentences someone to 20-30 years, the person will have to serve 15 years before earning any good-time. So they would have to serve 17-1/2 years before being eligible for parole.

A defendant must be given credit for any time spent in custody for the offense for which being sentenced.

Jail vs. Prison

All sentences imposed of a year or less are served in county jails. Sentences of a year or more must be served at the Nebraska Department of Corrections. If a judge gives a sentence of one year, the judge specifies if it is to be served in jail or prison. 

Probation

A person is supervised by a probation officer to make sure they do not re-offend. The court shall attach such reasonable conditions as it deems necessary or likely to ensure the offender will lead a law-abiding life. A probation term may include a “show cause jail” jail term of up to 90 days to start at a future time that can be waived if they are doing well.

Intensive Supervised Probation (ISP) is highly restrictive and only can be used when the penalty is six months in jail or more. Often it is an alternative to a prison term. 

Specialized Substance Abuse Supervision (SSAS) program also is higher restrictive probation for people dealing with substance abuse issues. 

Probation may last up to two years on misdemeanors or up to five years on a felony. 

If someone violates probation, a judge may revoke it and re-sentence the person in the case as if he or she had never been on probation. A judge may also choose to extend probation or add additional terms or conditions. 

Fine only

The only sentence allowed for a traffic infraction ($100 maximum). The Nebraska Supreme Court has a waiver schedule for hundreds of offenses available on the Nebraska Judicial Branch’s website.

Once a court imposes a valid sentence, it cannot be modified, amended or revised by the trial court and take effect from the time it is announced. Although, a judge can allow a defendant to report to jail at a later date. 

Revised 1/2019