Action and Sentence Mitigation 

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Every person that faces a sentencing hearing wants to get out of prison early. But not every person wants to prepare in ways that advance prospects to get out early. To prepare, we must act.

Consider how the opposition will act.

How do prosecutors achieve their goals? Since they strive to convict, they work with investigators and gather as much evidence as they possibly can. They interview witnesses and strive to develop a story. They research statutes and case law. Then prosecutors strategize on how they can use all those resources to convict defendants. 

Prosecutors will do anything it takes to win. They will devise the best possible plan to pressure defendants into pleading guilty. They may threaten to indict loved ones, or they may overcharge defendants, knowing that defendants are more likely to take a plea bargain if they’re facing severe sanctions. If defendants choose to contest their guilt, prosecutors will create a plan to persuade a jury to convict. They use the same, deliberate, action-oriented approach to persuade a judge to impose a severe sentence. 

  • Are you willing to work as hard to get the result you want?

Probation officers have goals, too. They create more documentation to support the government’s case against defendants. Viewing themselves as protectors of society, probation officers may be skeptical when they meet defendants.

  • Defendants should expect probation officers to write presentence investigation reports that give great weight to the government’s version of events while diminishing any evidence that could humanize the defendant. 

Humanizing a defendant does not advance the goal of a severe sentence. 

Theoretically, judges approach all cases without bias. But it’s not practical to believe that a judge approaches a case without bias. A judge may watch 100 different people sit at a defense table. If statistics hold true, convictions will follow for more than 90 of those people. The judge has the responsibility of sentencing those 90 people. To prepare for sentencing, the judge will review reports from prosecutors, probation officers, and defense attorneys. 

That’s an action step. After reviewing those reports and considering all the evidence that has come before him, the judge will decide on an appropriate sanction. 

  • What action steps have you been taking to influence that proceeding? 

We encourage participants in all our Prison Professors’ courses to take action.

Defendants can influence outcomes if they write extensively. Their writings will show how deeply they’ve thought about their predicament. This body of work provides the judge with more evidence to consider. Defendants can provide a different perspective than the judge will receive anywhere else.

Extensive writing helps judges see how much thought defendants have put into their predicament. From a judge’s perspective, more “thought” equates to a less likelihood for reoffending. And a less likelihood to reoffend makes defendants better candidates for mercy. 

Judges reveal that most defendants who come before them do not take action. They do not do enough to show who they are as human beings. As a result, judges base decisions on information provided to them from the prosecutor, the probation officer, and the defense attorney. Before imposing sentence, judges would like to know more about the defendant. 

When defendants fail to take action in preparing effective sentence mitigation packages, they miss an opportunity to influence the sentence. Yet creating effective mitigation packages requires action. 

Through earlier modules of this mitigation course, we’ve encouraged participants to think. 

“Thinking” is a definitive action step. 

But thinking is not enough. A person has to act. 

Each module we offer concludes with 10 questions. Inside the individual modules, we’ve asked dozens of other questions. All those questions are open-ended—meaning that responding requires more than a one-word answer, like yes or no.

We designed the modules, and the questions, to induce participants to take action. Whenever appropriate, defendants should write at length when offering responses. Every question in the module could result in a response of at least one paragraph. Some questions should result in responses of more than three paragraphs. If a participant has taken action, by now, after completing five full modules, a defendant should have a package that includes at least 100 paragraphs of well-organized content that offers the judge a great deal to consider. 

Envision the different possible scenarios and choose which option would be more effective at helping a judge understand the person he is about to sentence: 

  • Defendant chooses not to make any preparations prior to sentencing, leaving the entire sentencing proceeding in the hands of the defense attorney.
    • What will the judge think about the defendant?
  • Defendant chooses to present a letter to express remorse.
    • What level of influence will that exercise have on the judge?
  • Defendant prepares an entire package, extensive in both depth and breadth, to reveal how much he has thought about the crime and its impact on society.
    • What would this package of information reveal about the defendant to the judge?

Remember our takeaways from the previous module:

  • We succeed when we design and prepare sentence-mitigation packages that help the judge know more about who we are as human beings, how we think, and what we’ve learned from this experience. 

We recognize, of course, that some defendants began the Straight-A Guide Sentence-Mitigation course because they wanted to feel better. But if a defendant doesn’t follow through with the work—or retain someone to help him complete the work—the package will not be anything more than words on a page. 

Defendants who want a favorable result from this course must take action. They must provide the judge with evidence to show how much they’ve thought about the crime, the victims, their role in society, and how they can make amends. 

Take an action step right now. Think, and then write! Respond to the following questions: 

  1. What thoughts go through a judge’s mind the first time he reviews an indictment or charging instrument labeled, “United States of America—v—Your Name.”
  2. What thoughts go through a judge’s mind when a defendant walks into a courtroom and sits at the defense table?
  3. What thoughts go through a judge’s mind after a defendant pleads guilty, or is found guilty by a jury?
  4. What thoughts go through a judge’s mind when reading a presentence investigation report?
  5. What thoughts go through a judge’s mind when he listens to a prosecutor argue for a severe sanction?
  6. What thoughts go through a judge’s mind when he listens to a defense attorney argue for mercy?
  7. What thoughts does a judge formulate about a defendant when the defendant is silent at the sentencing hearing?

Those are all open-ended questions. Each of those questions could result in a response of at least one paragraph, and likely several paragraphs.

Let’s provide an example of how such questions could help us build a sentence-mitigation strategy. We’ll write a response to the first question above. Then we’ll analyze how we could use our response to begin building our sentence-mitigation package. 

Exercise:

What thoughts go through a judge’s mind the first time he reviews an indictment or charging instrument labeled as follows:

  • United States of America—v—Your Name

A judge picks up a charging instrument and makes an immediate assessment. 

In my case, I guess that the judge looked at the indictment and immediately assumed I was guilty. That’s easy to understand. After all, convictions result for more than 90 out of every 100 defendants that the judge sees. If I had a job that resulted in the same outcome 90% of the time, I too would assess how each case would turn out. Sometimes, I may not even look at the facts.

I can see how a judge could become intellectually lazy. 

A defendant wouldn’t be very effective in changing the judge’s bias by wearing a nice suit, showing off an academic pedigree, revealing how the person came from a great family, or making statements that he’s not really that bad. 

Judges respect prosecutors a lot more than they respect defendants. And prosecutors charged a person with a crime. When prosecutors charge a person with a crime, that individual ceases to be a “person.” In an instant, the person becomes a defendant. 

Defendants must accept the new reality. Bias from many sectors will come with this reality. 

That exercise was an action step. Your response to the question could be different. We’ve asked that question to clients who inquired with us about writing sentence-mitigation strategies. David, for example, answered the question as follows:

Judges see a lot of criminal defendants, that’s true. But most of those people are really criminals. They sold drugs. Or they robbed people. They’ve never held a job or paid taxes. They didn’t finish school. They don’t have strong families or support groups. So obviously, when the judge sees the indictment, he expects to see those people as criminals. 

My case is different. Even though I pleaded guilty, I think the judge will understand that I’m different. I didn’t set out to commit a crime or cause anyone to lose money. The markets turned against me and I didn’t have any control over what happened. 

It’s not really my fault. I just pleaded guilty because I didn’t want the expense of going to trial and I knew that a jury may not get the whole picture. But I’m confident that the judge will know from my background that I’m not a real criminal, at least not the kind that usually goes into the courtroom. 

The way that we respond to the question may determine what action steps we take next. David had a hard time believing that his judge would put him in the same category as every other defendant. 

But what action steps could David take to show the judge that he’s different? 

Someone who reflects more deeply on the question, and responds as in the first example, may act differently from someone who expects a judge—and others—to inherently know that he does not have a criminal mind. Without a better understanding of the process, a defendant like David may do nothing but wait for the best possible outcome. That approach, however, rarely gets the result a defendant wants. 

Our team at Prison Professors likes to paraphrase a great author to present an analogy: 

  • If you can’t fly, run. If you can’t run, walk. If you can’t walk, crawl.

In other words, if a person wants a specific outcome, he needs to lean toward action. He cannot wait for a defense attorney to make his case and he should anticipate that a judge or any other representative of the criminal justice system will view him from a favorable lens—regardless of his background. A person must take the necessary steps to unravel the biases and cynicism that is so pervasive with practitioners in the system. 

Crafting an effective sentence mitigation package requires time and effort. It’s crucial to build a compelling case showing why the defendant is worthy of mercy. Defendants should be sure that the prosecutor and probation officer will build their case. By working as hard as possible to match the voluminous package the government will prepare for sentencing, defendants advance their prospects for changing the mindset of judges, probation officers, and prison officials. Good packages may even influence prosecutors in a favorable way. 

Use the questions in these modules as prompts to build your package. Write more, show the judge that you have thought deeply about the predicament at hand. 

Take action! 

Consider the following as an example:

I am deeply ashamed for what I’ve done. When I saw the indictment, I felt the full weight of my errors. I didn’t only break the law, I disappointed my entire country. I stared at that indictment for hours. Shame and humiliation came over me as I thought about the magnitude of what I was reading. I realized that by committing a crime, I disappointed the entire country. 

As a citizen of the United States, I have a duty and a responsibility to abide by the laws in place. In this instance I failed. I did not have a right to break laws and I am ashamed for the actions that I took. By breaking laws, I made victims of every law-abiding citizen. I will do everything within my power to make things right and to make amends for the bad choices that I made. 

There isn’t any excuse for my behavior, and I will not offer an excuse. I am responsible for (describe the crime. Elaborate on your role and identify with the pain and suffering of victims.) I am determined to work toward making things right, to the best of my ability. 

We encourage you to think creatively, and to provide details. Although you may use the sample above, remember that mitigation does not mean boilerplate. It must tell your story.

Anticipate that prosecutors will present the judge with hundreds of pages—fully indexed—to argue for a severe sentence. Expect the entire prosecutorial team to speak in a single voice, all revealing the following message: 

The defendant isn’t sorry for what he did. The defendant is only sorry because he got caught. We urge the Court to sentence the defendant to the maximum penalty allowable by law.

Defendants advance their case for mercy when they use the same strategy of providing the judge with an extensive, easy-to-follow guide that reveals more about his background and character. 

This strategy goes far to disrupt the prosecutor’s request for a severe sanction. 

Unfortunately, some defendants take action, but they take the wrong action. We can provide many examples. Consider Martin Shkreli, the pharmaceutical executive who taunted investor-action groups, legislators, prosecutors, the media, the judicial system, and others. His strategy resulted in an unexpected detention order. The actions Shkreli took will certainly influence his sentence, though it’s unlikely the effort will make him a candidate for mercy. 

When defendants are found guilty—whether because of a plea or because of a verdict after trial—preparing for sentencing should take priority. Defendants who strive to re-litigate their case, or proclaim their innocence, put themselves at risk for much harsher treatment in the journey ahead. 

As an example, look at what happened to Robert Allan Stanford. 

Stanford was the founder of a Caribbean bank that offered investors a high yield on certificates of deposit. The yields proved attractive, luring thousands of American investors to make deposits. Stanford relied upon incoming deposits to pay those yields. 

According to the indictment—and to a guilty verdict—Stanford stole billions from those investors to fund his lavish lifestyle at the same time. He never saw himself as a criminal. From Stanford’s perspective, he was a successful businessman and he expected others to see him the same. 

Despite being charged and convicted, Stanford wanted to take action. Unfortunately for him, he took action steps that would further his demise. 

He contacted journalists and media representatives. Even though he was convicted—settling the matter of guilt—Stanford felt compelled to argue his case in the imaginary court of public opinion. Although there wouldn’t be any upside to making the case of his innocence in the media, he used every opportunity to lambaste the judicial system and declare that the system was rigged. Stanford argued that prosecutors deprived him of a fair trial because they manipulated evidence, confusing the jury. 

Stanford’s actions had an influence on the judge. Besides sentencing him to a term with a release date of 2105 for white-collar crimes, the judge made an unusual recommendation. 

In the order, the judge wrote that Stanford was unremorseful. He urged the Bureau of Prisons to confine Stanford in a high-security, United States Penitentiary. Since then, Stanford has been locked in USP Coleman. In the volatile environments of high-security, Stanford confronts daily challenges from violence-prone prisoners. 

A search of Robert Allan Stanford on YouTube will reveal several videos that show the disastrous consequences of his sentence-preparation strategy. 

Cases like Stanford and Shkreli leave a distinct impression on defense attorneys. Defense attorneys resist or discourage some defendants from saying much in court. Lawyers have their strategy to quarterback a case.

As a result, some lawyers advise defendants to minimize their contributions to the sentencing hearing. The lawyers may have concerns that a defendant could undermine the carefully laid out strategy, or they do not want to take the risk of a defendant making statements that could result in bad outcomes. 

All members of our team at Prison Professors urge defendants to learn from cases like Stanford and Shkreli. 

Take action but take the right kind of action. 

If you’re a defendant, do everything within your power prior to sentencing to show that you’ve given thought to the crime and the victims. Show that you’ve assessed the influences that led to the predicament you’re in. That means a defendant shouldn’t only talk about introspecting. A defendant should build a compelling case that shows the precise steps that he took, providing the judge and all stakeholders with incontrovertible evidence. 

By building a compelling case, defendants advance prospects for mercy at sentencing. We consider it crucial to show that you’ve done a considerable amount of work. Your judge will notice the many files that prosecutors and probation officers submit to argue for a severe sentence. Counter those arguments. Prepare yourself to overcome arguments by prosecutors who say that you’re only sorry because you got caught, and that a lengthy prison term is necessary to protect society from you. 

Action Steps:

  1. Describe how your understanding of your case evolved since the day of your arrest.
  1. In what ways has this experience of working through the criminal justice system influenced your understanding of your personality?
  1. How would you assess the values by which you lived prior to your arrest?
  1. In what ways has your arrested influenced the values by which you live now?
  1. How would you describe the values of your closest associates?
  1. What insight can you offer into the character of your parents?
  1. Describe a character in television show that has influenced your thinking in the past.
  1. Share a powerful lesson you’ve learned from a book you’ve read.
  1. Share how you’ve described your problems with the criminal justice system to friends and close associates.
  1. Talk about a role model, or mentor, and reveal how that role model or mentor influences your thoughts.

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