Attitude and Sentence Mitigation 

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To pursue anything of value, a person must begin with the right attitude.

How would we know whether a person has the right attitude? It’s simple. A person who has the right attitude makes a 100% commitment to success—consistent with his or her values and goals. 

In all of the Prison Professors’ Straight-A Guide programs, we write that success begins with attitude. It’s not necessarily our lesson. Rather, it’s what we’ve observed from leadership at every level of society. People that get better outcomes generally start with the right attitude—an attitude that is consistent with Henry Ford’s manta:

  • There are two types of people in the world. Those who think they can, and those who think they can’t. Both are right.

If you’re working through this course, we’re hoping that you’ve got the right attitude. In the first two lessons, you’ve given thought to defining success, and to the clear goals you must pursue. 

As we’ve expressed earlier, a mitigation effort cannot be a boilerplate solution. Each case must reflect the unique characteristics of the individual. For a defendant to persuade a sentencing judge that he or she is worthy of leniency, the defendant must build a solid case that shows how much thought the defendant has put into the effort. If successful, the mitigation effort may convince the judge that a lower sentence is just.

Consider the Straight-A Guide as a tool rather than an answer sheet. It’s like a compass to help participants advance through the journey. Do not mistake the guide as being anything more than a tool. Without doing the work, no one can make the type of compelling case that will influence a judge’s sentence. 

Further, as people that have gone through government investigations, sentencing hearings, and terms of supervised release, we know that mitigation has many different stages. Certainly, it’s best to work toward the lowest possible sentence. Yet regardless of what sentence a judge imposes, a person must think about mitigation efforts going forward. 

  • It’s never too early, and it’s never too late to sow seeds that will lead to a better outcome.

Stakeholder Perspectives:

Every defendant should anticipate the work that a prosecutor will invest into the case. In our experience, if a prosecutor has brought a case, that prosecutor will go all in toward securing a conviction and a lengthy sentence.

Prosecutors measure their performance with convictions. Convictions stand out when judges impose tough sentences. For that reason, every defendant should anticipate that DOJ prosecutors will build a solid case for a lengthy sentence. Indeed, the former Attorney General Jeff Sessions issued a memorandum mandating that prosecutors put every effort in proving the most serious charge possible. They want a severe sentence.

Although defense attorneys will do their best to counter the prosecutor’s arguments, defendants can serve themselves well when they show that they’ve introspected. If they can identify what they’ve learned from the predicament, and what steps they’re taking to make things right, they stand a better chance for mercy.

  • How much work are you willing to put in to influence the judge?

If you use our Straight-A Guide tool effectively, we’re convinced that you can really move the needle. Your decisions and actions can have an enormous influence on every stage of the journey. Your attorney may be able to use your mitigation strategy in the sentencing memorandum, building stronger arguments for leniency. 

We’ve interviewed more than a dozen sentencing judges. Two of those judges had the courage to present their views on video. You can watch those videos if you visit prisonprofessors.com, or visit our YouTube channel. Besides the two federal judges that appeared on video with us, every other judge we interviewed echoed the same sentiment:

  • The work that a defendant does prior to sentencing far outweighs anything the attorney says when it comes to mitigation.

We can present an analogy from the inspiring story of Michael Dell to communicate the message we want to convey in this module effectively. 

Michael Dell is the founder of Dell Computers. Many authors have written about Dell’s story. He launched the Dell Computer Corporation from his dorm room when he was a freshman in college. With $1,000, Michael Dell purchased parts and tools. He used those parts and tools to begin assembling computers. By leveraging the system that he created, he grew his business into the world’s largest personal computer manufacturer. 

If we had those same $1,000 worth of parts and tools, where would be? 

As the author of this module, I can say that I wouldn’t know what to do with the same parts and tools that Michael Dell used. Yet by applying a system he created, he turned those parts and tools into a company that now generates more than $70 billion in annual revenues. If I had the same parts and tools, I would not know what to do with them.

You must know what to do with the “parts and tools” we’re providing with our Straight-A Guide Mitigation course. These are the same tools that our mitigation experts use to help people get extraordinary results at sentencing, and through the system. They invest many hours to get those results. Yet people that do not have financial resources to hire a mitigation expert can do the work themselves. We believe that our Straight-A Guide course on sentence mitigation—along with all of the other free content we publish on our Prison Professors channels—can help people who are willing to help themselves.

Your Compass:

A compass isn’t worth anything unless we use it.  We created the Straight-A Guide because we’ve used this compass to overcome struggles in our life—that’s why we know that it works. Yet if you’re facing a sentencing hearing, and you don’t use the guide as a compass, you will not have anything more than words on a page. 

We need to apply lessons of the Straight-A Guide if we want to build a compelling mitigation package. The questions you answer in the first lesson of this course should help you define success. Those questions reflect the values by which you profess to live.

In the second lesson, you answer more questions. Your responses to those questions show the very specific goals that you’re setting. Each goal should be specific. If you use the tool effectively, the goals you identify should have a clear start and finish date. They also should have clear measurements for success or failure. Finally, the goals should make your commitment to the values self-evident. 

By articulating those values and goals, you build a more compelling case. 

Always consider the judge’s perspective. The more understanding you have of the people who will judge you, the more confident you will become in your mitigation strategy. Your mitigation strategy should influence your sentencing judge, but also the other stakeholders who will judge you in the future. 

Let’s start with the sentencing judge. 

  • Who is your sentencing judge?
  • What is the educational background of your sentencing judge?
  • What does the career trajectory of your sentencing judge look like?
  • Which president appointed your sentencing judge and what does that say about your sentencing judge’s political philosophy? 

If you don’t have answers to those questions, then let’s make some assumptions. 

All sentencing judges have a law degree. Before anyone can get a law degree, the person must go to law school. To attend law school, we know that a student must first earn an undergraduate degree. Further, the person would need to score well on the standardized Law School Aptitude Test (LSAT). 

From that information, we can reverse engineer a bit further. To score well on the LSAT, a person must be a good student. To earn good grades, a person must study. For a judge, hard work and study habits likely began long before college. It’s a safe bet to assume that the judge began working hard and making good decisions as a child. During high school years, the judge likely thought strategically about college. He or she knew that the decisions and grades in college could influence prospects for admission to a good graduate school or law school. Then, performance in law school would influence the career after law school. 

Becoming a federal judge isn’t easy. It requires an appointment from the president of the United States. So it’s likely that judges thought strategically long before the appointment. Strategic thinking and hard work have been a part of the judge’s character for many, many decades. 

From that assumption, we can infer that your judge will likely respect people who work hard and who think strategically. Your judge will likely respect someone who thinks about the past and thinks about the future. You advance prospects for your judge to empathize with you if you can persuade the judge how hard you’re working to figure things out and make things right. Put significant effort into planning your future. 

Every defendant must overcome prosecutorial and judicial bias. 

  • Based on what your judge knows about you, what will he think about your work ethic? 
  • In what ways will the judge know anything about how much thought you put into decisions? 

Consider a judge’s responsibilities. Every week, the judge must preside over criminal cases. Prior to working as a judge, many judges served as prosecutors. As with any other human being, a judge’s prior experiences influence perceptions. When a judge considers a defendant, the judge knows and understands that the defendant wants leniency. But if the judge had the responsibility of sentencing several separate defendants who stood convicted of similar crimes, which would be most likely to receive leniency at sentencing: 

Defendant 1:

  • Defendant 1 chose to leave the entire sentencing matter in the hands of his attorney and didn’t participate in the hearing at all. When the judge asked the attorney if the defendant had anything to say at trial, the defendant chose not to respond.

Defendant 2:

  • Defendant 2 didn’t do or say anything prior to sentencing, but at the sentencing hearing, when the judge asked if he had anything to say, the defendant said: “I’m going to really miss my kids. For their sake, I hope you’ll take that into consideration.”

Defendant 3:

  • Defendant 3 did a lot of work prior to sentencing. He completed an extensive amount of written work that helped to document his life story. His effort showed the judge what he learned from this experience with the criminal justice system. Further, he showed a series of methodical steps he has been taking to make things right.

Based on what we’ve learned from our work with federal judges and based on the work we’ve done with hundreds of other defendants, we’re convinced that in the example above, Defendant 3 stands the best chance of receiving leniency at sentencing. 

Why? 

The judge will recognize Defendant 3 as a person who is willing to work hard. Defendant 3 is serious about making amends. For a person to write extensively, a person must think extensively. That thinking reflects introspection. Introspection shows that Defendant 3 is learning how past decisions influenced current problems. When we combine that introspection with good planning, and with accountability metrics, the judge identifies with the message. It is the same message and strategy that the judge used to advance his life and career. The judge recognizes that Defendant 3 uses tools to make better decisions. 

What are our tools? 

Our values and goals reflect the tools we use. With those values and goals, we advance possibilities for the best outcome at sentencing. Our tools show that we created a roadmap that will take us from where we are to where we want to go. 

Defendants 1 and 2 failed to create a roadmap. They have not shown the judge anything. As a result, the judge can only consider what the prosecutor and defense attorney have said about the defendant. Yet both the prosecutor and the defense attorney have an agenda. A prosecutor wants a tough sentence. A defense attorney wants leniency. 

But in the examples above for Defendant 1 and Defendant 2, the judge doesn’t know anything. He doesn’t have any reason to consider the defendant as being a candidate that is worthy of leniency. He doesn’t know the influences that led the defendant into the crime. Nor does he know whether the defendant has learned anything from the experience.

  • If Defendants 1 and 2 haven’t learned anything from the experience, on what basis should the judge grant a request for leniency? 
  • How can the judge be sure that the defendant will not engage in the same type of behavior that led to this conviction? 
  • What efforts are these defendants making to influence the judge? 

A good sentence mitigation strategy should anticipate the judge’s reaction. The strategy should also anticipate the prosecutor’s reaction. Here is an abbreviated version of what you can expect a prosecutor will say: 

The defendant says he is sorry, your honor. But the defendant is only sorry because he got caught. We did not hear the defendant speak about the many victims in this case. For that reason, your honor, we’re asking for the maximum sentence allowable.

Obviously, the prosecutor will insert more details. If a defendant anticipates such a statement, the defendant can act. Use our Straight-A Guide Mitigation tool. It starts with identifying values and goals. But that is only a start. Identifying values and goals are the prerequisites to using the tool. Once we’ve identified values and goals, we move forward in a methodical way. Our Straight-A Guide Mitigation strategy requires us to consider: 

  • Attitude
  • Aspiration
  • Action
  • Accountability
  • Awareness
  • Achievement
  • Authenticity
  • Appreciation

How do we apply those concepts to a mitigation strategy? We apply these concepts in the same way that we apply concepts to any other success strategy. Let’s briefly discuss each component. In the next lesson, we’ll show an example of how any person facing a sentencing hearing may use those components to craft an effective sentence mitigation strategy. 

Attitude:

Our mitigation strategy must show the judge that we have the right attitude. 

What’s the right attitude? 

  • We measure the right attitude by showing that we’re making a 100% commitment to success. 

How are we defining success? 

  • We’re defining success with our values and goals. When writing out your mitigation piece, make sure that you’re showing that you’ve got the right attitude. 

Anticipate that your prosecutor will make a case that you’re not remorseful. Anticipate that the judge has heard pleas for leniency at sentencing from every defendant.

Contemplate how your mitigation package will reveal your 100% commitment to the values and goals you’ve described. Those who judge you will assess whether you’re being truthful. By anticipating that your prosecutor will portray you in a negative light, you can craft a plan to help you overcome that obstacle. The words you choose, the thoughts you express, and the plans you make will reflect whether you’re sincere about wanting to make a change in your life. Never underestimate the forces working against you or the power you have within to show your commitment. 

Your commitment reveals your attitude. 

Aspiration:

A sentencing judge has a long history of listening to defendants. All people the judge has ever sentenced shared one desire in common: they wanted leniency. 

Sometimes, their mitigation efforts failed to show why they were worthy of leniency. Saying “I’m sorry” isn’t always enough.

If people have unrealistic expectations about the best possible outcomes, then they put themselves on weaker ground than if they were to build a plausible case—showing they appreciated the severity of the situation from the perspective of stakeholders who work in the system. 

A good case is a compelling case. A bad case is one that doesn’t offer any substance or supporting documentation. We’ve got to show the work. In many circumstances, it doesn’t make sense to request an alternative sentence that doesn’t include imprisonment. 

When the conviction involves a crime that a judge would consider a real threat to society, a defendant may focus the mitigation effort on helping the judge empathize. Rather than telling the judge an appropriate sentence, build a story. Strive to shape the judge’s perception. Describe the influences that led the defendant into making decisions that led to this outcome. Then the defendant must show steps he is taking to overcome those influences. The sentencing judge may respect such aspirations as being part of the defendant’s systemic plan to make better decisions in the future. That can go a long way toward persuading the judge that a lower sentence is warranted. 

Action:

We show that we have the right attitude by expressing our 100% commitment to make values-based, goal-oriented decisions. Yet those decisions will only lead us from where we are to where we want to go if we take the necessary action steps. Think about the action steps that you can take today. 

As we show in our book, Earning Freedom: Conquering a 45-Year Prison Term, regardless of what predicament a person is in today, that individual can begin sowing seeds for a better outcome. But the person must take incremental action steps. 

Writing out your plan is one action step. But what other steps can you take today to leave the judge your commitment? What action steps will make an impression on your judge? There is always an action step to take, regardless of where you are now. That is why it’s best to start this mitigation effort early. The earlier you begin, the more you can show how you’re taking steps to make amends. Those action steps build credibility, and they may advance a mitigation effort. 

Accountability:

A good mitigation strategy will incorporate accountability metrics. Those accountability metrics will show how much thought went into the mitigation strategy. Judges understand that change does not happen overnight. As described above, their trajectory to the bench was likely a long and methodical journey. They likely relied upon accountability logs to help them track their incremental progress. 

A mitigation strategy looks more plausible when it includes measurement tools. In the story you’re building, show the incremental changes that you intend to make along the way. Again, use our books as examples of how accountability logs helped our team members advance in incremental steps. 

  • How will your mitigation strategy show the incremental steps that you’re taking to reconcile with society and to make amends? 
  • In what ways will your accountability log show differences in your life one year from now and five years from now? 
  • How does your accountability persuade a judge that you’re thinking through a sustainable path to success as a law-abiding, contributing citizen? 

Awareness:

Your mitigation strategy should reflect your awareness of opportunities to grow. By writing out your plan, you can show that you’re not waiting for time to pass. You’re not feeling sorry for yourself. Instead, you’re taking action. All judges want to see action more than words. 

To the extent that your actions are consistent with the plan you laid out, you become more believable. 

Opportunities for growth are all around. Judges know that few defendants perceive those opportunities. Through your mitigation strategy, you must show how you’re actively behaving differently from most defendants who come before the court. 

Every defendant requests leniency, but few defendants show that they’re on a path that reflects their commitment. Show that you’re aware of steps you can take today to begin influencing a more positive tomorrow. 

Further, by adhering to this path, you’re more likely to bring others into your life. Those others will develop a vested interest in your success. Judges want to see that you have support. They want to see that you’re on a pathway to success. They want to know that defendants are choosing a different path from the path that led them into the criminal justice system. 

A good mitigation strategy should disrupt the system’s current perception. Show your commitment to grow. 

Achievement:

In what ways can you measure and celebrate incremental achievements? You advance your prospects for mercy when you get the judge to identify with your plan. 

How can we use this knowledge in our mitigation strategy? We create the same type of plan that the judge has used throughout his life. Those plans show incremental action steps. 

The judge likely believes that he is in his position because of the small, incremental steps he has been taking for his entire life. He began following a plan as a young person. He put work in so that he could perform well in school. The grades he earned led to distinction and to new opportunities. Those opportunities led to respect from his colleagues. That career path eventually led to a presidential appointment and to confirmation by a group of U.S. Senators. He sees his life as a series of incremental achievement. 

In your mitigation strategy, show how you’re intending to build on a series of small, incremental achievements. Your strategy must reflect the building blocks that will lead you from where you are today, to what you aspire to become in the weeks, months, years, and decades ahead. 

Authenticity:

Let your work reflect your authenticity. Rather than your perception, make it clear that you’re considering the perception of your judge. In what ways can you differentiate yourself from every other defendant the judge sees? How does your plan show your authenticity? 

It’s crucial to think from your judge’s perspective. Life experiences likely will make your judge very cynical of anything you say. He has heard too many defendants talk a big story. To build authenticity you should promise less and deliver more. This pattern will make you believable. If you’re believable, you go much further toward your goal. You may persuade your judge to see you for what you can become, and not only for the crimes that led you before the bench. 

Appreciation:

Finally, remember that your judge believes that all good citizens want to live as a part of the law-abiding, contributing community. From a judge’s perspective, people who break laws live selfishly. Instead of thinking about how their actions influence the lives of others, criminals think about themselves. 

Your mitigation strategy should take the perceptions of law enforcement into consideration. 

  • What steps can you take to overcome judicial bias that comes from your current predicament? 

Create a plan to show how you’re striving to contribute to society in meaningful, measurable ways. To the extent that you can show that you’re thinking about others, you’re showing that you want to be one with society. 

Judges are more likely to respond favorably to people who show that they’re striving to live for goals that show their respect for law and order. Think about the broader community. Create a pathway that leaves your judge with the impression that you’re on a path to live as a law-abiding, contributing citizen. 

  1. In what was does your mitigation package differentiate you from every other defendant who asks for leniency at sentencing?
  1. What does your defense attorney use know about the efforts you’ve made to reconcile with society?
  1. How does your mitigation package reflect your awareness of the job market you will encounter upon release?
  1. In what ways is your mitigation package showing that you’re striving to make amends with your community?
  1. What does your mitigation package reveal about the incremental changes you expect to make over the next five and ten years?
  1. How does your mitigation package show that you’re tracking incremental progress?
  1. When your judge reviews your mitigation package, what level of growth will it show that you’ve made?
  1. In what ways will your mitigation package counter prosecutorial statements that suggest you’re only sorry because you got caught?
  1. Why does your mitigation package show that you understand the severity of your crime and the victims that suffer because of the crime?
  1. What is the best possible outcome from this mitigation effort?

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