Clients help their attorneys best by offering complete honesty, bringing as much detail about the offense as possible. Sadly, some people don’t get this message until it’s too late, leading to higher costs and less favorable outcomes.
Then, for the most part, the client must wait for the attorney to use a combination of art and science to obtain the best possible outcome. Many defendants feel helpless, as if they’re string-puppets, with others determining all future outcomes of their life.
Despite the valiant efforts attorneys make to bring forth a dismissal of the charges or an acquittal, in more instances than citizens would believe, convictions follow. When defendants are convicted of felony charges in federal court, the Presentence Investigation follows. Then, generally between 60 and 90 days after the conviction, the sentencing date awaits.
Unlike previous stages of the proceedings, where the defendant had to defer to attorneys for guidance, a defendant should play an active role in preparing for the sentencing hearing. To the extent that defendants are willing to act proactively and think creatively, they can provide enormous assistance to the defense attorney. Once guilt is established, or once a defendant agrees to plead guilty, the defendant should begin thinking about possible sentence-mitigation strategies. The defense attorney will steer the ship, but it is up to the defendant to provide the attorney with the fuel to launch the most effective arguments at the sentencing hearing.
The well-prepared defendant will develop comprehensive, sentence-mitigation strategies. We consider this work essential to advancing the possibility of avoiding imprisonment as a sanction, or in reducing severity of the sentence.
The possibilities for sentence-mitigation strategies are endless. They require creativity and experience. Yet a consequence of the hundreds, or sometimes thousands of total man-hours that are necessary to craft an effective sentence-mitigation strategy, the cost of retaining personal consultation and assistance becomes prohibitive for many defendants.
Defendants who lack the financial capability to retain guidance that will help them prepare for sentencing are not without resources. They simply must tap into their inner reserve and intellect. Preparing for the sentencing date requires the defendant:
• To think creatively,
• To use all of his or her critical-thinking skills,
• To write persuasively, and
• To prepare the most compelling oral presentation ever.
Because the sentencing hearing will have an enormous influence on the life of the defendant and the defendant’s family, we encourage people to prepare. When our team works to prepare a client for a mitigation package, we take the following steps:
When interviewing a client, we want to learn everything. We have hopes of finding anything that may help the case. The information we gather will lead to a comprehensive biography and, hopefully, persuade the judge to impose the lowest possible sanction.
That interview is the starting point for any sentence-mitigation strategy. We use that time to identify the client’s strengths, achievements, and support networks. The opportunity helps us begin to understand the context of an individual’s life. Our objective is to uncover any issues that may help us explain—if not excuse—the behavior that led to the current circumstances.
By asking open-ended questions and listening closely to our clients, we broaden our understanding. The hope, of course, is to persuade the probation officer who completes the Presentence Investigation Report, and more importantly, the judge, to see our clients as something more than the crime for which our clients have been convicted.
Obviously, individuals who prepare their own sentence-mitigation packages will not have to respond to an endless stream of questions from a curious interviewer. But that doesn’t mean the individual cannot “interview” himself. An individual who wants to make the most persuasive case for a lower sentence must master the art of introspection. A defendant should take time to reflect on all of the influences that led him to become the person that he is.
During this period of introspection, the defendant must think critically about every aspect of his past. Ask one question after the next. This time-consuming process of mining the mind, digging deep, can yield gold for the sentence-mitigation strategy.
Individuals who prepare their own package must exercise extreme discipline to think both linearly and abstractly, then put all of his thoughts into a context that will make a compelling case for the lowest possible sanction.
Start the interview with questions such as:
• Tell me about your background.
• I’d like to hear about your family.
• What do you remember about the early influences in your life?
• Tell me your motivations for choosing the career that you’ve built.
• How would those who know you best define the values that guide your decisions?
Obviously, the questions we could ask are endless. A defendant who chooses to prepare his own sentence-mitigation package must exercise extreme discipline. To the extent that he can reflect, ask questions, respond, reflect on the responses, and contemplate what additional questions may follow, he will see patterns. By writing out those patterns, he will begin to craft a narrative.
The narrative may show influences that led the defendant to become the individual that he has become. Again, the quest isn’t to excuse behavior that others have deemed criminal. In fact, an effective sentence-mitigation strategy would strive to show an acceptance of responsibility, remorse, and penance.
The sentence-mitigation package should strive to show the more complete portrait of the individual, to show a common humanity that we all share. This effort can yield enormous dividends at sentencing, especially if the package (presented indirectly through the defense attorney) helps the probation officer and judge perceive the defendant as a fellow human being rather than as a criminal.
The entire purpose of a sentence-mitigation strategy is to influence the lens, or perspective through which others see the defendant. Although the defendant sees himself as a husband, a father, a brother, a son, a taxpayer, a professional, a coach, a good citizen, and so forth, many within the system will not share that view.
Defendants must remember that probation officers and judges deal with people who’ve been convicted of crimes on a daily basis. Those experiences can harden their perceptions, causing them to perceive all defendants cynically. In many cases, probation officers and judges can be less than sympathetic toward well-educated, white-collar offenders.
Individuals with professional backgrounds that others may perceive as being privileged must work exceptionally hard to craft a narrative to show reasons why a harsh sanction is inappropriate in their case; many within the criminal justice system have a tendency to believe that people of privilege should know better than to break the law.
Although the judge will never have a conversation with the defendant, an effective sentence-mitigation package would help the judge feel as if he understands the influences that led the defendant into current circumstances. There are endless approaches to portray a favorable impression. The strategy must be coherent, and it must be plausible. Defendants who understand the complexity of the challenge will invest the time, energy, and resources to make a compelling, persuasive case.
Interviews yield treasure troves. Each interview should reveal new layers that further develop the redeeming qualities and characteristics of the defendant.
When a defendant is preparing his own package, he may want to make a list of all the people who willingly would testify to the good character of the defendant. Those people may include:
• All family members
• Teachers from childhood
• Fellow worshipers
• Volunteer recipients
• Business associates
A defendant who prepares his own package should be relentless in his pursuit of others who will validate his good character. He should then prepare a list of questions that will reveal the following information from each character witness:
• As many details as possible that show:
o How the relationship began.
o Positive influence defendant has had on the character witness’ life.
o Contributions the defendant has made to build a better community.
o Level of support the witness pledges toward the defendant.
o Reasons why the witness is convinced that the least possible sentence is appropriate.
Defendants may find it awkward to interview their character witnesses in a face-to-face meeting. Nevertheless, they will serve themselves well if they can overcome their apprehensions. They must not underestimate the importance of investing the necessary time, energy, and resources to create an effective sentence-mitigation strategy. The more character references an individual can summon, the more persuasive he will make his presentation.
Again, it is essential for defendants to remember that both probation officers and judges interact with people who’ve been convicted of crimes every day. Judicial officials routinely hear from defense attorneys who argue for lower sentences.
Accordingly, those within the system may become cynical of such arguments. For that reason, defendants must empower their defense attorneys by giving them ammunition to overcome that judicial cynicism. Muster the discipline necessary to:
• Interview as many character witnesses as possible.
• Create a structured series of questions that will prompt the character witness to talk about the defendant’s positive qualities and contributions to society.
• Incorporate all of the information gathered into the sentence-mitigation package.
Since relatively few criminal defendants will be able to summon scores of character references, those who take the time to prepare an effective package will stand out.
Take the next step toward creating the effective sentence-mitigation strategy. That step begins with collecting records that would corroborate or support all that our narrative shows. After collecting those records that document and support the argument that a minimally invasive sentence is warranted, compile the narrative.
Ideally, when the defendant passes his sentence-mitigation package to his defense attorney, he should provide a resource that allows the defense attorney to tacitly summon the Biblical message of: “Let he who is without sin cast the first stone.”
Judges will rely upon the federal sentencing guidelines as a resource when determining an appropriate sentence. The range within those guidelines, in many cases, can be measured in years. A sentence-mitigation package would go a long ways toward influencing the judge to perceive the individual as a fellow human being. The guidelines endow the judge with discretion, and factors that may be relevant to an argument for a lower sentence may include:
• Mental state of mind
• Emotional condition
• Substance abuse
• Physical condition
• Military service
• Financial circumstances
• Familial circumstances
• Community contributions
There is a history of case law that shows judges do in fact depart downward from guideline recommendation. In every one of those downward departures, someone has made a compelling, persuasive argument that the government vehemently opposed. The Supreme Court has mandated that judges must consider all mitigating factors that are relevant to any purpose of sentencing. But if the defendant doesn’t raise those mitigating arguments, then the judge will not consider them.
According to Title 18 USC, Section 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”
Judges frequently impose financial penalties in addition to incarceration when sanctioning defendants. All defendants who are convicted of felonies in federal court receive a felony assessment that currently amounts to $100 for each felony conviction; an individual convicted on 10 counts will have a $1,000 felony assessment that he must pay.
In addition, however, judges impose larger criminal fines or restitution orders on some defendants. And on occasion, they may impose a Cost of Incarceration Fee, which currently exceeds $28,000 per year of confinement. Defendants who were not able to pay such fees prior to confinement will face consequences in prison. Bureau of Prison administrators will pressure inmates who have financial sanctions to enroll in the Financial Responsibility Program (FRP). Inmates who choose not to enroll will endure harsher conditions while in custody.
The BOP will request increasing amounts of payments toward financial sanctions. If those payments will provide a hardship on the family, inmates may make a special request at sentencing. They should explain the financial hardship that incarceration will place on family finances. Then they may ask the judge to issue an order regarding payment toward the fine. Defendants who succeed in persuading the judge to issue such an order will not begin paying toward the fine until after release.
In the alternative, the defendant may ask the judge to write an order into the judgment that prohibits the BOP from taking more than the minimum payment of $25 per quarter toward compliance with the Financial Responsibility Program.
Once the individual perfects his sentence-mitigation package, he should go over it in detail with his defense attorney. The defense attorney will then present the package to the judge. The judge will review the package, and by law, indicate that he has considered all factors. During the sentencing hearing, the defendant would be wise to invite as many character witnesses as possible to testify on his behalf. Finally, the judge will impose the sentence. He will memorialize that sentence in a document known as “The Judgment and Commitment Order,” or “J&C.” The defendant should begin taking steps to climb to a better life.
We urge those who are serious about wanting to serve the least amount of time possible to invest the time, energy, and resources on creating the most effective sentence-mitigation strategy possible.
• Describe your strategy to ensure that you receive the lowest possible sentence.
• Why will your activities influence the judge?
• In what ways are you working to persuade others to support you during the sentencing process?
• How have you prepared your closest friends for the prospect of your incarceration?
• In what ways are you preparing your family members for the prospect of your incarceration?