What Judges Want to Know
On October 25, 2017, I interviewed U.S. District Court Judge Stephen R. Bough. Judge Bough presides over the bench in the Western District of Missouri. President Obama appointed Judge Bough in 2014. Since then, Judge Bough has sentenced many people. We learn a great deal about effective sentence-mitigation strategies by listening to federal judges.
When federal authorities bring charges against a person, those people become “defendants.” More than 80% of defendants in federal cases face sentencing hearings. I will ask Judge Bough about steps a person can take to prepare for the best possible outcome at sentencing.
Contrasting Lawyers with Sentence Mitigation Specialists
Defendants retain defense attorneys to assist them with judicial proceedings. The lawyers have specialized skills to analyze legal precedents. The lawyers are great analytical thinkers, fitting facts to legal principles. They dissect the law and assess whether the prosecutor can prove a case beyond a reasonable doubt.
Lawyers don’t always show a great interest in learning about the “why” or the influences that led to the criminal conviction. When lawyers spend time listening to the people they represent, and they explain the opportunity costs that come with every decision, they provide a great service. If a person’s lawyer doesn’t explain the opportunity costs that accompany every decision, then the person should either learn options, or collaborate with a mitigation specialist that can explain.
First, a sentence-mitigation specialist should be a good listener. Through a lengthy interview with a person facing a criminal charge, the mitigation expert should look for themes. The specialist should help the person understand every option.
- What is the background of the defendant?
- Is there anything in the background that can help the judge understand how the person became a defendant in a criminal case?
- What tools, tactics, and resources can the person develop that will advance his or her candidacy for leniency?
Further, a sentence-mitigation specialist will have a thorough understanding of all the proceedings that follow. The case does not stop with the sentencing hearing. The next step for many defendants is a journey through federal prison. Then they face time on Supervised Release.
The mitigation specialist should prepare a defendant for every step along the journey.
Although the defense lawyer may present legal facts, the judge will likely want to know more. A sentence-mitigation specialist can help. Instead of sitting back and hoping for the lawyer to get the best possible outcome, a defendant should take action. A defendant can invest the time, energy, and resources to help the judge learn more about his or her life history.
Many people that become defendants lack the confidence to present this life history in a compelling way. They are too close to the situation. With their liberty at stake, they tend to make excuses or use some version of the “it’s-not-my-fault” approach. If that is the case, they should research steps on how to prepare an effective sentence-mitigation strategy. Or they should find a competent sentence-mitigation specialist.
A competent sentence-mitigation specialist should have a variety of skills. Some essential skills require the sentence-mitigation specialist to:
- Be a good questioner
- Be a good listener
- Be a good investigator
- Be a good story teller
- Be a good writer
- Be a good coach on every aspect of the journey
During the interview, the sentence mitigation specialist should know how to find themes in the defendant’s story.
To get the best possible outcome, the sentence-mitigation specialist must succeed in differentiating himself from other defendants. Help the judge look beyond the criminal charge. Instead, show what influences led to the current predicament. Do not excuse misconduct. Explain the influences that led to challenges with the law.
A defendant should show the judge what he or she has learned from the process. He should show empathy for the victims. The defendant should show the judge what steps he or she has taken to make things right. And the defendant should build a case that shows why he will never again be in a situation that could expose him to problems with the criminal law.
If a defendant can accomplish that task, he will go a long way toward putting himself in a position for the best possible outcome. At least that is what I have learned through my work with Prison Professors.
Effective Sentence-Mitigation Strategies
As a founder of Prison Professors, I have had the privilege of listening and learning from conversations with several federal judges. Previously, I interviewed Federal Judge Mark Bennett, from the Southern District of Iowa. I participated as a keynote speaker at the UC Hastings School of Law on Sentence Reform. While there, I interacted with several federal judges, including Judge Charles Breyer, a Senior United States District Judge for the Northern District of California; Judge Breyer also serves as the vice-chair of the U.S. Sentencing Commission. I’ve listened and learned from Judge Terry Hatter, from the Central District of California, and from Judge Frank Zapata, who is a Senior District Court Judge in Tucson, Arizona. A few years ago, I concluded my interview with Judge Stephen Bough.
All federal judges expressed the same message when I spoke with them. They want to know more about the defendant. Federal judges take sentencing extremely seriously. They already know the law. They have a solid understanding of possible penalties. They know all relevant decisions related to federal sentencing guidelines. They know what prosecutors have said about the defendant. And they know what the probation officer wrote in the presentence investigation report. Judges also know that the defense attorney is going use legal principles and precedents to make a solid case for the lowest possible sentence.
The judges want to know more about the defendant. And defendants can help themselves when they invest time and energy to present their stories. The essence of a good sentence-mitigation strategy is presenting a story. Help the judge understand the “why” of how he got into the situation. Do not try to excuse the behavior. If there is a sentencing hearing, there is already a finding of guilt. A defendant will not advance his prospects for mercy at sentencing with the “it’s-not-my-fault” approach. Nor will they help their case with “I’m-going-to-miss-my-kids.” All defendants miss their family. That argument doesn’t move the needle in a sentencing hearing.
Prospects for mercy begin with introspection. A defendant should take the time to reflect. Discuss every influence. Offer the judge some insight into family background. Describe parents and siblings. Discuss the academic journey. If sports were part of your life, help the judge understand what you learned from coaches. For those with a career, tell the judge about responsibilities. Describe your credit history and earnings. Show how you’ve lived as a contributing member of society. What contributions have you made? The judge will want to know influences that led to the current charge. What have you learned? Who were the victims? Why were they victims? What steps are you taking to make things right?
Written and Oral Allocution at Federal Sentencing
A defendant should begin thinking about the sentencing hearing the day that he learns he is a target of a criminal investigation. Why? The vast majority of people who become defendants eventually face a sentencing hearing. It makes sense to prepare. Those preparations can lead to a strong case for mitigation. That case for mitigation may lead the prosecutor to a more favorable plea agreement. And the early settlement of the case may advance an argument for mercy. Judges appreciate it when defendants accept responsibility. They want to get to the “why” of what made the person a defendant.
Although the defense attorney will submit a sentencing memorandum, the defendant can advance his cause with his personal narrative. Provide a life story for the judge to consider. That story may take several pages to write. As a rule, present the story in written format. Some people may present a story in four or five pages. Others may require as many ten pages to narrate a life story. Each case is different. A well-written narrative will give the judge more information to consider, and it will show the judge why he is worth of mercy.
During the sentencing hearing, speak sincerely. Do not read the narrative in court. Defendants do well when they submit the sentencing narrative early in the process. That way the judge can reflect on the defendant’s life story. But during the sentencing hearing, when the judge asks the defendant if he has anything to say, the defendant should speak sincerely. Instead of reading, stand straight. Let the judge look into your eyes. Show the judge that you are remorseful.
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