- Note: We received the following article from a contributor to Prison Professors. He would like to remain anonymous. He offers insight that others may find of value about mitigation strategies.
I should probably have titled this article “How to Earn a Lower Sentence.” In all reality, getting the lowest sentence possible in a criminal case requires a person to work.
I’m writing this article for people in the federal system, but the information contained here applies to a large part to those in state and local courts as well. These sentence mitigation strategies will work in courts throughout the world.
My Background:
After building a successful career as an attorney for longer than thirty years and representing countless defendants ensnarled in the criminal defense system, I pled guilty to two federal tax felonies. The convictions exposed me to 14-year sentence. Effective mitigation strategies influenced my judge to impose an 18-month sentence. I transferred to home confinement after serving less than six months of that sentence in the Otisville federal prison camp.
What You Should Know About Mitigation Strategies:
Whether you are at the beginning stages of a criminal investigation or days from being sentenced after an extensive trial, you can take deliberate steps to mitigate your sentence.
Sentence mitigation starts at the initial stage of the investigation. As soon as you become aware of an investigation you should retain counsel. Be completely open and honest with your attorney and follow your attorney’s advice. Do not destroy evidence and do not interfere with witnesses. You can make things much worse if you interfere with a government investigation. It is particularly important if you have a substance abuse issue or an alcohol abuse problem to begin treatment. The sooner you enter treatment in the process, the better the potential out come of your sentencing hearing will be. The judge will want to see that you understand and that you are addressing your issues.
Facing Charges
I began preparing for sentencing the day I found out that I was under investigation. I came home on a Tuesday evening after a Bible study at our Orthodox Church. My wife had made dinner as usual. After dinner she gave me the business card that had been dropped off at the house when I was at work. It was from a special agent from the Internal Revenue Service. I know that I had serious issues with past unpaid tax and that I had lied on my most recent tax returns to reduce my tax liability.
I was an attorney at that time. I had previously been a certified public accountant and I had surrendered that license twenty-five years earlier. I have an MBA in taxation. I understand that the Justice Department has certain standards that must be met before they will open an investigation.
Once authorities open an investigation, if they bring charges, as they frequently do, with tax cases they have over a ninety percent conviction rate. It was immediately evident to me that my time to be held accountable for my conduct had arrived. Shortly thereafter I found out that the special agent and an assistant US attorney had subpoenaed my banks, mother, an aunt, my daughter who had worked for me and several current and former employees. The IRS came in with figurative guns blazing. They use overwhelming force to beat you into submission. They did not need to do that with me.
I interviewed several attorneys as I knew that I needed representation. The lowest retainer that was asked was twenty thousand dollars. I could not afford that. I had about five hundred dollars to my name having just come off from a divorce where I lost everything. (My former wife had written a letter to the IRS which helped their case along.)
Going through the Process
I received a summons, which is a court order requiring me to produce my business records. I complied without asking for additional time. The special agent wanted everything scanned. I did not do that as I was not required to do so by law. I gave them nine boxes of documents.
When I produced my documents, the special agent invited me to talk with her. I said that I would, but I needed counsel and I could not afford an attorney. She contacted the AUSA in the case who made arrangements for me to have a federal defender.
From the outset I found that it was important to be compliant with the investigation. My case was a document case. The documents were in the hands of others and subject to subpoena. I did not try to interfere with anyone who was subpoenaed. When asked, I told them to testify honestly. I did not ask them what they intended to say. Interfering with witnesses is a crime and I knew that if I tried to do so it would end very badly for me.
Once I retained counsel the case moved quickly. The prosecutor made an offer to plea to two felonies relating to tax evasion for an early year with an agreement that they would not seek a sentence that was beyond sentencing guidelines. Guidelines for the crimes that I was being charged with were twenty-four to thirty months incarceration with three years post release supervision as well as restitution.
I felt that the offer was excellent. I also know that the judge is no longer bound by sentencing guidelines. Based upon my experience as a defense attorney in both state and federal court, I knew that the judge had wide discretion in imposing a sentence. I felt based upon my crime and the sentences that I had seen meted out for similar crimes in other cases, I would be sentenced to an eighteen-month term of incarceration.
I consented to proceed before a magistrate judge instead of waiting to be heard by a district judge. I wanted to be cooperative and to put this whole matter behind me. I allocuted a plea of guilty in December 2019 before a magistrate judge. Magistrate judges do not have the authority to enter a guilty plea. They report to the district judge who decides if the plea was acceptable.
What I did not do but should have done was to begin paying restitution. The sooner that you can take steps to mitigate the effects of your crime, the better result you can expect. Mitigation shows that you appreciate the impact of your conduct and favorably influences the judge and the prosecutor. Accept responsibility for your conduct in a meaningful way.
After my plea I was told to be interviewed by the probation department for a pre-sentence investigation. I was given a list of documents to produce. The documents included educational records, financial documentation including my most recent tax returns, licensing records and medical records. I obtained all my records, separated them into folders made three copies, one for the probation officer, one for my attorney and one for me. And I gave them to my attorney to give to the probation officer.
I wanted to fully comply with the demands for document production and I did not want to delay the interview. I feel that it is important to show that I was pro-active in doing what was required. My interview went well. I was ready and answered all questions fully, accepted responsibility and I did not minimize my crimes. I showed remorse and I am remorseful to this day. I was hoping that the probation officer would see it appropriate to recommend a downward deviation from sentencing guidelines. That did not happen. The probation officer stated that she did not see any reason to deviate from the sentencing guidelines.
My sentencing was initially set for April 2020. The pandemic hit and it was adjourned twice, over my objection, which my attorney declined to raise. I was not pleased. I would have consented to a video sentencing. I just wanted to get it over.
I spent quite a bit of time online watching videos about federal prison. Justin Paperny of White Collar advice put out many such videos. He also sent me a copy of a book he wrote without charge. Michael Santos of Prison Professors also has a website with a wealth of information on the topic.
Sentencing day came in September 2020. My hearing began about forty minutes late. I suspect that the judge was reading my file. I had obtained several letters from colleagues and friends attesting to my good character. I also wrote a letter to the judge. These letters proved valuable. It is important that each letter be individually written. Boiler plate form letters will not help you.
Five to ten good letters from people who know you are far more impactful than hundreds of form letters from people who are following a strict format. The defendant is given the opportunity to speak before sentencing. This is the time to show the judge that you are remorseful.
If you have restitution due and you have paid it or are arranging to do so, this is the time to tell the judge. If you have become involved in charitable or philanthropic work, tell the judge. Making yourself human is important. Do not waste time begging for a lower sentence. The judge knows what you want. This is the time to show the judge why you are worthy of a more lenient sentence.
I wrote out a few pages of notes from which I developed a soliloquy. I practiced it a few times in front of my wife and delivered my speech to the judge. He was impressed and found that he did not need to sentence me for specific deterrence. In other words, he believed that I understood the gravity of my conduct and that I would not re-offend. He did sentence me for general deterrence. That is, he sentenced me to promote respect for the law.
Understand that the prosecutor is not your friend. You are the enemy in their eyes. A criminal. The probation officer sees you in the same way. They expect that you will be manipulative and do whatever you can to get out of being sanctioned. They view you with a jaundiced eye. You cannot change that. Do not allow the prosecutor’s attitude to get under your skin. Say what you must say and remain calm. You have an important job to do. You must convince the judge, not the prosecutor, that you are worthy of leniency.
When sentencing a person who has been convicted of a federal crime, federal judges look to 18 U.S.C §3553 of the United States Code. This section of the United States Code sets forth the factors that a judge must consider in imposing a sentence after someone is convicted of a crime.
They include the nature of the offense, the history and characteristics of the person who was convicted, the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Other factors include the kinds of sentences available; the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission. No one factor is controlling as to how the judge issues a sentence and there can be differences in sentences for the same crime between judges. Your job, and it is the most important job in your life, is to convince your assigned judge that you are worthy of the most lenient sentence possible.
In the federal system, sentencing is completely within the discretion of the judge. He or she will not be bound by any deals made with the prosecutor, so such deals are not made. My attorney told me that I would receive no more than a year and a day in prison and possible home confinement. I have been an attorney for a long time. I knew enough not to listen to his ramblings. I always felt that I would be sentenced to eighteen months incarceration, some post release supervision and restitution. That is exactly what happened. I believe that I received the lowest possible sentence for my crimes based upon sentencing guidelines. I was sentenced to a significantly lower term of incarceration than I would have been had I not taken the steps that I did.
