What Is a Suspended Sentence?

A suspended sentence gives a defendant a chance to serve their time in the community rather than behind bars.

By , Attorney · New Mexico School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Updated 1/06/2023

If you're convicted at trial or plead guilty to a crime for which the judge can sentence you to jail or prison, the judge can suspend all or part of the sentence and may place you on probation (supervised or unsupervised). A suspended sentence can be an excellent alternative to serving a lengthy jail or prison sentence.

What Is a Suspended Sentence?

When sentencing a defendant to serve jail or prison time, the judge has a few options on how that time will be served. The most common options are to either execute or suspend the sentence. Executing a sentence means the judge carries out the sentence by sending the defendant to jail or prison to start serving their time. Or, the judge can suspend the sentence and the defendant will have the opportunity to serve (all or part of) that time in the community instead of behind bars.

If the judge suspends all of the jail or prison time, a defendant can avoid having to serve any incarceration time. If the judge suspends part of the jail or prison sentence, the defendant will have to serve some time incarcerated but may be able to serve the rest of the time on probation. Upon successfully completing the period of probation, the court considers the sentence for the crime served.

What Is the Point of a Suspended Sentence?

Judges suspend sentences for a variety of reasons. In some cases, a judge might not think that a crime warrants time behind bars, but rather that a different punishment is better suited to the crime. For example, a judge might order a defendant to clean up their graffiti, speak to students about the dangers of texting and driving, or otherwise contribute to the community to make amends.

A suspended sentence can also allow a defendant a chance to remain in the community, keep their job, fulfill family obligations, and seek help for behavioral health, substance abuse, or other issues that might have contributed to the criminal behavior. By staying a productive member of the community, a defendant may have a better chance of rehabilitating and not committing more crimes.

Suspended sentences can also provide an incentive to remain law-abiding. When the suspended part of the sentence is conditioned on complying with probation terms, the threat of incarceration looms over the defendant's head (more on probation revocations below).

When Is a Suspended Sentence an Option?

A suspended sentence usually is available in any state court, but it's at the judge's discretion. Any defendant can request a suspended sentence, but no defendant is entitled to this sentencing option. When deciding whether to suspend a sentence, the judge will consider the current offense, the defendant's criminal history, the defendant's willingness to rehabilitate, whether the defendant poses a risk to public safety, and other factors.

Can Judges Suspend Jail and Prison Sentences?

In most states, defendants convicted of misdemeanors will serve their time in a local jail. Defendants convicted of a felony when the sentence is a year or longer will typically serve that time in state prison. Judges can suspend either type of sentence—a misdemeanor jail sentence or a felony prison sentence.

In some felony cases, a judge might suspend the prison sentence and place the defendant on probation, which can include a short jail sentence. So, a defendant sentenced to five years in prison might not have to serve time in prison but may have to spend a few months of their suspended sentence and probation in a local jail.

Can a Plea Bargain Include a Suspended Sentence?

Yes, prosecutors often are willing to include a suspended sentence in a plea bargain if the defendant has a minimal criminal history, mitigating circumstances exist, or both. The sentence agreement is subject to the judge's approval. If a defendant is convicted at trial, the defense can request that the judge impose a suspended sentence. If the defendant is convicted or pleads guilty to a particularly violent crime or has an extensive criminal history, the prosecutor is less likely to agree to, and the judge is less likely to impose, a suspended sentence.

When a Suspended Sentence Is Not an Option

If the state's criminal laws provide a mandatory minimum jail or prison sentence for the crime committed, the judge cannot suspend that sentence. For instance, if the law requires that a person convicted of a second offense of forgery involving more than $10,000 serve a mandatory minimum of one year in prison, the judge must impose that prison sentence.

Is a Suspended Sentence the Same as Probation?

No, suspended sentences are a type of criminal sentence, whereas probation is an alternative to incarceration. While it's common for judges to suspend a sentence and place the defendant on probation, it's not always required.

For a minor offense, a judge might suspend the sentence without probation. The criminal conviction will still go on the defendant's record but they won't serve jail time. A judge might do this if the defendant already served time awaiting trial or to avoid overcrowding of jails. Judges can also suspend a sentence and instead require the defendant to pay a fine, complete substance abuse treatment, or serve community service hours. Again, the conviction and sentence will still go on the defendant's record but they avoid jail time.

Suspended Sentences and Conditions of Probation

While not always required, judges often condition a suspended sentence on a defendant's agreement to abide by set probation terms.

Unsupervised probation. When a defendant receives a suspended sentence and is placed on unsupervised probation, the court usually will impose some conditions on the defendant, such as remaining law-abiding, not using drugs or alcohol, and not leaving the state. The defendant will be expected to abide by these conditions without being required to report to a probation officer. This kind of probation is common in misdemeanor cases.

Supervised probation. A defendant placed on supervised probation will be required to report to a probation officer as directed. The probation officer will be checking on the defendant's progress and compliance with probation terms, such as complying with a curfew, submitting to random drug testing, maintaining employment, not possessing weapons, not associating with known criminals or felons, and attending treatment.

Can a Suspended Sentence Be Revoked?

If a person serving a suspended sentence violates the terms of probation, the court can revoke the suspended sentence and require the defendant to serve the remainder of the sentence in jail or prison. Typically, the prosecutor and the defense will negotiate and try to reach an agreement on the revocation and remaining sentence.

If the violation was minor or a technical violation—such as a missed appointment or check-in with a probation officer—the prosecutor might agree to, or the court might impose, a short sentence, such as 30 days, and then reinstate the suspended sentence. For more serious violations, such as being arrested for another crime, having numerous violations, or failing multiple drug tests, the defendant most likely will have to serve a significant portion or all of the suspended sentence in jail or prison.

What Is Suspended Imposition of a Sentence (SIS)?

In some cases, the judge announces a sentence (say 10 years' incarceration) and then suspends it. Other times, a judge will enter the conviction but hold off on handing down (or imposing) a sentence—this is referred to as a suspended imposition of sentence (SIS).

What difference does it make? If the judge never announced the sentence (an SIS) and the defendant violates probation, the judge can revoke probation and set the sentence at the time of revocation. Had the sentence already been imposed, the judge can revoke probation but, when fashioning the punishment, the judge is limited to the original sentence imposed for the crime. (Check out this article for more details.)

Consult an Attorney

An attorney can assist you in addressing your sentencing options if you are convicted or decide to plead guilty to a crime. Contact a criminal defense attorney as soon as you learn you have been charged with any crime so that you will have representation throughout the entire criminal process.

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