This is one of the most common questions that we are asked when we are meeting with a new client. The short answer, like almost all answers in the legal world, is that it depends. In today’s blog we will look at the factors a prosecutor will consider in deciding whether they think you should have to do jail time as part of your possible punishment for a criminal charge. It should be noted this blog will offer generalizations and what will apply to your specific situation can only be addressed by speaking with an Indianapolis criminal defense attorney about your case directly.
Factors That Affect Jail Time
- What is the Charge? What you are charged with will likely have the largest impact on whether or not you will have to serve any jail time. With a very few limited exceptions, if you are charged with a misdemeanor, then you likely are not facing any actual jail time. Indiana jails are very overcrowded and in most instances there just isn’t any space to house those charged with misdemeanors. If you are charged with a level 6 felony, the odds of you doing jail time increases based on the other factors in this blog. If you are facing a level 5 felony or higher you are now in the “major felony” arena and a possibility, but not certainty, of jail exists. Obviously, the more serious the offense the
- What is your criminal history? The more criminal history you have the more likely the state is to seek jail time. This is especially true if you have committed the same types of offenses or if you have committed several felonies. A history of drug possession related offenses may be more manageable as prosecutors and judges are starting to look for more treatment related solutions with these types of cases.
- What is the nature of your offense? Crimes that involve victims, such as robberies, burglaries, serious battery offenses and sex crimes will always be looked at with a harsher eye by the prosecutor than crimes like theft, fraud, identity exception and the like. If your crime involves physical harm to a victim, then the likelihood of the prosecutor wanting jail time significantly increases. If the offense is a sex related crime there is also an increased risk of jail time.
- How strong is the state’s case? When we are negotiating outcomes for our clients, much of what we are doing is testing the strength of the state’s case. When the prosecutor is deciding whether or not they should seek jail time, they will always have in the back of their mind, how much evidence do I actually have to prove this case should it go to trial. The stronger the state’s case the more leverage they have to request jail time as part of a sentence. Many times, this is where a defense attorney can do the most good. If the state starts questioning the strength of their case their confidence in their ability to win at trail decreases and the likelihood of them offering jail also decreases.
- Is community corrections an option? As jails and prisons have become more and more overcrowded, alternative placement options have become more popular. The two most common types of community corrections are work release and home detention. In some counties there are particular people within the system that must approve a defendant for community corrections and in other instances you can qualify anytime the parties agree to it. If you and your case qualify for community corrections it can often be a great alternative to jail or prison.
The above are the most common considerations that go into what a prosecutor will consider in determining whether to offer jail time in your case. Obviously, every situation is unique and you should always have a discussion with your criminal defense attorney as to how these factors play a role in your case. If you are facing a criminal charge contact the attorneys at Banks & Brower 24 hours a day at 317-870-0019 so we can discuss your situation.