Judge Mark Bennett 

We spoke with US District Court Judge Mark Bennett to ask him what steps a person should take before the sentencing hearing. Anyone facing a sentencing hearing will learn from this video interview.

Q and A with a Federal Judge:

Judge Mark Bennett was a Senior Judge of the United States District Court for the Northern District of Iowa. He served as a judge on the United States Court of Appeals for the Eighth and Ninth Circuit. Judge Bennett graciously agreed to talk with us to discuss how an offender can achieve the best possible outcome in their sentencing hearing.

What have you learned from sentencing thousands of people?

1:14-2:55

Judge Bennett has a few primary takeaways from his experience as a judge for twenty-three years. 

First and foremost, he realized that the war on drugs was and continues to be a failure. Furthermore, many of the people he sentences are good people who have made bad decisions. The majority of these people are addicts who enter the criminal justice system from their low-level drug dealing.

Many of the sentences determined by congress have been too harsh and put people in prison for too long. Once these individuals enter prison, the judge has witnessed that there aren’t enough resources geared towards rehabilitation.

Ultimately the judge does not believe that people shouldn’t go to prison, but his research and experience have led him to conclude that people are incarcerated for far too long.

How can a person influence a better PSR?

2:55-5:40

Probation officers prepare a pre-sentence report after an offender is convicted of a crime. The report provides the context for the offender and their crime to assist the judge in issuing a just sentence.

A carefully crafted narrative by the offender within the pre-sentence report does not often occur, as defense attorneys mainly focus on the government’s offense conduct statement.

Judge Bennett believes that many defense attorneys need to focus more on the client’s account of events to provide a differing perspective to the government’s conduct statement. Many times the offender’s perspective provides a more nuanced view of the matter and can mitigate sentence length.

Thus, pre-sentencing reports are paramount to success in a sentencing trial. Judge Bennett recommends that offenders review the report many times, ensure it is accurate, read the offense conduct statement, and confirm their attorney takes all of this into account.

The judge has found that more often than not when the offender contends something from the conduct statement, he finds that the offender provides a more accurate and detailed account of events than the government’s version.

He then encourages offenders to challenge anything in the offense statement that is not entirely accurate. Cross-examining the conduct statement will lead to a more nuanced view of the offender and ensures that the court doesn’t miss something the offender wants to discuss. False or misconstrued information could hurt the offender’s case, so everything must be factual.

How do judges view allocution?

5:40-9:30

For his research, the judge reached out to 900 federal judges and asked them about the importance of the offender’s version of events and the factors that led them to commit a crime in sentence lengths.

The vast majority of judges hear the statement of the offender at the end of sentencing very seriously and weigh it heavily to make their final decision. Allocation proved to be a significant factor in moderating and reducing sentences.

On numerous occasions, when Judge Bennett asks the offender if they have anything to say, he sees that they turn to their counsel, skeptical to talk and unsure of what they should say. That is very upsetting for the judge, for the lawyer should have discussed the offender’s statement long before the trial to facilitate the best possible outcome.

He even came close to increasing sentences because of the offender’s bad allocation. For instance, an offender in a recent case complained the whole time about how his family was upset by the ruling and showed no empathy for the victims of his crime.

Good allocations take responsibility for the crime, discuss the impact it had on the victim and the community, and provide a plan of rehabilitation—how they intend to spend their time in prison and upon release to repay their debts to society and live a life of meaning.

He would find it even more impressive and mitigating if the offender has already taken steps within their plan.

Would value do judges place on a first-person introspective narrative?

9:31-11:35

For sentencing, the lawyer’s opinion on what their client has learned and how they will make changes is a fine introduction.

The nuts and bolts of allocation need to come from the offender so that the judge can better access the genuineness and realistic nature of the approach. The judge could lessen the sentence if the offender has attainable yet impressive goals and shows they are thoughtful.

How would you feel about a narrative before the pre-sentence investigation?

11:36-13:34

The goal of acting earlier than later would be to communicate clearly the offender’s account of events to the probation officer. The judge also reads these pre-sentence reports thoroughly before the trial, and getting the offender’s story would allow judges to address relevant issues and concerns.

Judge Bennett has never seen an offender do this despite its potential effectiveness. He expressed that he would be extremely impressed if the offender had come up with their narrative before the parole officer prepared the pre-sentencing report.

The pre-sentencing report helps shape Judge Bennett’s frame of reference and initial perceptions going into the sentencing hearing. If he had the offender’s narrative in the report, he could ensure that the offender was candid, decreasing the sentence length.

13:35-16:10

The overall importance of crafting a narrative for the pre-sentence report:

Many offenders are reluctant to write their narrative because they fear it might contradict the work of their defense attorney. However, offenders should still do it because sincerity and honesty can create a sense of common humanity in the court, where the offender will be seen as a flawed person (as we all are) but who wannts to make something better.

Pre-sentence reports advance the likelihood of the best possible outcome.

Judge Bennett notes that most offenders he has met have lacked parental guidance and grappled with addiction. Whether their turbulent childhood led them to take drugs at a young age or their parents provided the drugs, these backgrounds help explain why the offender did what they did. 

The lack of parental guidance almost always justifies the downward variance for the judge. He doesn’t generalize, so it is paramount to contextualize the offender’s life. It doesn’t justify—but it does explain—the crime and often mitigates the punishment.

Do mental-health professionals help a person at sentencing?

16:10-19:52:

Many offenders have mental instability and other neurological issues. Psychologists can offer reports or even testify in a trial as expert witnesses. 

Judge Bennett believes that the analysis from a psychologist is always beneficial, but the scope of the benefit varies. These psychological evaluations are crucial for judges when they have more discretion in sentence length and need to know whether the offender made a mistake they can learn from quickly.

Psychiatric evaluations don’t always have to point to a mental disability, as proving the offender’s stability can suggest a quicker rehabilitation process.

Even though Judge Bennett appreciates all expert reports, a live witness allows cross-examination and questions from the judge, resulting in the judge giving more weight to their credibility and assertions.

How much influence do character references have on sentencing?

19:53-22:46

Character references can come from a variety of people with the purpose of shining light on who the offender is outside the singular perspective of their crime.

Judge Bennett roughly estimates that he has read around 35,000 character references as a judge, for offenders normally have around eight to nine references. 

Here is some important insight into how references affect his decisions:

  • He gives more weight to letters if the references have known the offender for a long time ad provide a nuanced perspective.
  • He gives less weight when a letter comes from someone who barely knows the offender, even when a powerful person (such as a senator) wrote it.
  • He gets offended when references tell him what the sentence should be and what he should do, as that oversteps the purpose of references and comes across as condescending.

What impact do payments toward restitution have on sentencing?

22:47-24:30

Many crimes cause financial damage to an individual, community, or institution. Offenders who know they have caused damage can take initiative to provide financial compensation (restitutions).

Judge Bennett meets many offenders who say that they hope to make restitution payments once they get out. That provides no reassurance and will most likely not mitigate their sentence. Making payments, even if small, shows real initiative and can go a long way.

The judge has never heard an offender say that they look forward to working in the prison industry to make restitution payments behind bars. He would be extremely impressed if he thought it was sincere, which could lower the sentence length.

Do witnesses help at sentencing?

24:31-27:45

Judge Bennett believes that this might make an impact at a subconscious level since greater support generally increases the likelihood of successful rehabilitation.

On the other hand, when no one comes on behalf of the offender, he tries to not let that influence him. The offender might feel embarrassed and not want to put their family through any pain.

Judge Bennett has seen support backfire in some white-collar causes. For instance, Judge Bennett grows irritated when over one hundred people are supporting the offender, writing what he or she did was not that bad and that the offender is a good person are really a good person. After all, this is not the trial to determine their guilt or innocence. The sentencing stage looks into the nature of the offender to determine the course of their rehabilitation and punishment.

Essentially it is a case-by-case basis. He has been impressed when employers who know that their employee will be serving many years in prison, yet still show up to the court to say that they think so highly of the offender that there will be a job waiting for them upon their return.

In any situation, offenders and their counsel should plan well how many people should support them and in what capacity.

Lessons from visiting people he sentenced:

27:46-29:59

Judge Bennett has conducted research where he documented what he learned by visiting those he sentenced, both in and out of prison.

His work reinforces the notion that most of these people are good humans who have made bad decisions under the influence of drugs and alcohol. That idea leads to him leaving these visiting sessions in prison with mixed emotions. 

He deeply regrets that he had to give them such long sentences because of mandatory minimums. However, he remains optimistic because many offenders are making the most of their time and learning skills to build a better life when they return.

These prisoners inspire him, for they have transformed their lives after their sentence—they looked at their lives and realized that it was not the life they wanted, so they took steps to improve themselves.

How does prison adjustment influence a judge?

30:00-33:50

As laws change, some offenders may have the opportunity to get reevaluated by a judge. Furthermore, prisoners can have their sentence commutated or pardoned by the President’s office. 

These possibilities demonstrate that prisoners should never stop improving themselves, even in the face of a life sentence, as there is always a possibility of an earlier release.

One of Judge Bennett’s cases went to the Supreme Court (US v. Pepper). Judge Bennet released Pepper from prison earlier during his resentencing because of all the good things he did in prison. The 8th circuit court said that the Judge’s actions were unconstitutional, but the Supreme Court ruled it was within Judge Bennett’s power to do what he did.

Pepper had this opportunity because he had made incredible decisions in prison to create a life of meaning as soon as possible. 

Furthermore, the Judge has spent a lot of time writing commutation and pardon letters on the behalf of people he sentenced. The most important element for the success of these appeals are:

  • What courses/classes they have taken
  • If they are helping their inmates
  • How they spend their time
  • Whether they have any infractions

When a prisoner has a print record and list of accomplishments to provide documentation of their success behind bars, they are more likely to receive a pardon or commutation. That shows that there is always hope, as even with a life sentence, there is always a possibility of an early release.

Moving forward:

35:51-35:17:

Judge Bennet explains that there are many ways in which a prisoner’s sentence—whether in prison, supervised release, or parole—can be terminated early with the correct documentation. There needs to be evidence of how an individual took the time to reconcile with themselves and society.

Regardless of what is going on in the world, who is in congress or the White House, an individual can always take steps to become better. These actions will only help, as they can be beneficial for a myriad of goals.