Jail Time?

Factors a Judge Considers

A jail sentence is the worst possible outcome of your criminal case. Whether or not a judge will sentence you to jail depends on many factors. Here are the five most important ones. 

1. The Charge

What you’re being charged with is one of the most important factors. The more serious the charge, the more likely you’ll be sentenced to jail.

Some criminal charges carry mandatory jail terms. That means a judge can’t sentence you to anything less than what is required.

2. Your Criminal Record

The longer your criminal record, the worse. It looks to the judge that you’re a menace to society and should be taken off the street. 

3. Prior Jail Terms

If you’ve been sentenced before, it’s more likely you’ll receive a jail sentence again. Further, jail terms generally get longer the more you have. It’s known as climbing up the ladder. Punishments increase over time.

But arguments can be made to reverse this trend for you. For example, if it’s been a long time since your last jail term or if the current charge is less severe, that can help you. 

4. Your History on Probation

If you’ve done well on probation  in the past, the judge may believe probation would be appropriate on your current charge. However, if you have a history of probation violations, you will be considered a poor probationary candidate. That means you’re more likely to get jail time.

5. Victim Input

If your case involves a victim, they have the right to address the court as to what they want to have as an outcome. The Court isn’t bound by their wishes, but it does play an important role. If the victim was harmed and wants you to go to jail, that could very well influence the Court.

Alternatives to Jail Time

Just because you’ve been charged with a crime does not mean you’re going to jail. There are many other options that we can explore while representing you. Most of these alternatives are available through the plea bargaining process. Plea bargaining give you a lot more control over the outcome of your case. Here are the most common resolutions from best to worst.

1. Dismissal

A dismissal is the best possible outcome. In a dismissal, the case is over and done with. Dismissals can happen through negotiation with the District Attorney’s Office or by motion. Sometimes dismissals are granted with added conditions such as paying court costs.

2. Pre-Trial Probation

Pre-trial probation is the next best outcome for your case. In this situation, your placed on probation for a period of time. You may be required to perform certain tasks such as community service or attending classes. The benefit of pre-trial probation is that you don’t have to admit to any of the allegations against you. The District Attorney’s Office must agree to pre-trial probation. The judge can’t order it without their approval.


CWOF stands for continuation without a finding of guilt. In this case, you don’t say that you’re gulty of the crime. What you’re doing is “admitting to sufficient facts.” Basically you’re telling the judge that you believe the government has enough evidence that they could win at trial and you don’t want to take your chances. You will be placed on probation for a period of time. There are two big advantages to a CWOF.

a. It’s not a conviction, and

b. If you successfully complete probation, your case is dismissed. 

4. Guilty - Probation

In this scenario, you plead gulity to the charges and are placed on probation. There may be additional conditions while on probation such as, remaining drug and alcohol free. By pleading guilty, you are considered convicted of this crime. If it’s a felony, you will then be a convicted felon. That is something that will follow you for the rest of your life. 

5. Suspended Sentence

This is the last stop before jail. In this case, you plead guilty and are placed on probation as in the gulity-probation situation. However, it’s more serious if you violate any conditions of your probation. 

Here’s how it works. When the judge gives you a suspended sentence, they sentence you to jail, but suspend the incarceration period. You’re placed on probation with that time hanging over your head. If you violate probation and the judge wants to send you to jail for any amount of time, they must impose the suspended sentence. They have no discretion to send you for any lesser amount of time.


These are just some of the factors the court considers when deciding whether to send you to jail. There are many more. Each case is unique and each judge will rely on different factors to a greater or lesser degree. 

Facing a criminal charge is a serious matter, not only for you, but for your family as well. 

Don’t let money get in the way of protecting your rights. At Afford Law, our fees are based on your income. The less you earn, the less you pay. 

Book a free, virtual consultation with us today. See how affordable justice can be.