In a felony sentencing, what do the terms ESS and ISS mean? What’s the difference?
Felony sentencing overview:
The first question that the sentencing judge must make is whether to grant or deny probation. In most felony charges, there is a three-level or triad of sentences that can be imposed. For example, many felonies carry as potential punishment 16 months, 2 years or 3 years in custody. Those used to be the possible prison terms, but with a change in the laws a couple of years ago, that could be either prison time or time served in county jail. But before getting to which of those three possible sentences to impose, the first question is whether or not to give the defendant probation.
Probation is a period of supervision under certain terms and conditions that the defendant must follow. If they are found in violation of any of the terms of probation imposed, they can be brought back before the court and if found to be in violation, they can get any or all of the maximum sentence on the charges they were convicted of. Just exactly what the risk is and what can be imposed is the huge difference between an ESS and an ISS sentence.
ISS (Imposition of Sentence Suspended)
In the vast majority of felony probation sentences, the judge orders that “Imposition of sentence is suspended” and the defendant is placed on probation for a period of time (typically 3 or 5 years, depending on the charge). Just because a defendant gets probation and “imposition suspended” doesn’t mean they do no jail time. A defendant can be sentenced up to a year in jail as a term of probation, along with other conditions. If a defendant is found to have violated their probation, they can then receive additional punishment. That could be anything from simply revoking and reinstating probation with no additional consequences all the way up to imposing the maximum sentence. Typically, a first time violation of probation will result in a 30-180 days in jail as a sanction for the violation. The point is that the judge has a lot of leeway in deciding what punishment (if any) to impose if the defendant violates.
ESS (Execution of Sentence Suspended)
The other way to be sentenced and receive probation is to have an ESS imposed. At the time of sentencing, the judge would sentence the defendant to ____ years with the execution of that sentence suspended while they are then placed on probation. The other term for an ESS is a “joint suspended” sentence – the prison (or joint) sentence is suspended during the time of probation. The defendant could still be ordered to serve up to a year in county jail and have other terms imposed. The difference is that if there a violation, then whatever the sentence imposed was is then ordered. No slap on the wrist and a few days in jail – you get the sentence that was originally imposed.
An ESS is often referred to as a “deal with the devil.” It avoids an initial sentence of a much longer time, but if there is any violation, there’s no wiggle room. Of course, if you can make it through probation without any violations, then the threat of that suspended sentence goes away when probation ends.
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