You want to create a mitigation strategy.
To help you succeed, we’ll use an analogy. The best analogy will be your own life.
Despite the challenges that you face right now, we know that you’ve led a full life. You’ve likely succeeded in many areas.
- How did you succeed in those endeavors?
If you agree with the same principles that we rely upon to teach thousands of people in jails and prisons across America, you likely adhered to the following steps:
- Step 1: You defined success at many different stages.
- Step 2: You documented a strategy to show the deliberateness of every step you took.
- Step 3: You created tools, tactics, and resources that helped you along each step of the journey.
- Step 4: You created or adhered to some type of accountability metric that allowed you to stay on course, or adjust along the way, based on the situation at hand.
- Step 5: You executed your plan flawlessly, advancing from one incremental step to the next.
If you rely upon those same principles when engineering your mitigation strategy, you will be far more likely to achieve outstanding results.
No one can promise that a mitigation strategy will result in you getting out one day sooner. Nevertheless, a good mitigation strategy should advance your prospects to advocate for yourself at every stage ahead. And there are many stages that a mitigation strategy should take.
Sentence Mitigation: Consider the Stages
Before Being Charged:
A great mitigation strategy would begin before government investigators ever considered you as:
- a witness,
- a subject, or
- a target of an investigation.
If people don’t know the definition of those terms, or how investigators define success, they cannot conduct risk assessments to help them make better decisions. The best time to begin a mitigation strategy is long before an investigation begins.
During an Investigation:
Investigations typically begin in secret. Authorities may learn about a business or an individual from any number of sources. The more people understand how government investigations start, the better prepared a person can be to engineer a mitigation strategy that will advance prospects for the best possible outcome. The keyword is “possible” outcome.
- No one can change past decisions.
- A record exists.
- Documents and evidence exist.
- People will act in their own self-interest
- Investigators will seize upon that evidence to build a case.
Engineering a mitigation strategy requires a person to think about how he or she will respond to the problems at hand, and the risks ahead.
Before a Charging Decision:
If authorities haven’t brought a charge yet, a person has many opportunities to engineer a mitigation strategy. Yet if a person doesn’t have experience, the person will not know what those opportunities look like.
Let me provide an example from the case study of a man who became a friend of mine while we were together at the Lompoc federal prison camp. Martin served a six-month sentence for violating the Sherman Anti-trust Act. As an executive for a Fortune 100 company, he got wrapped up in a government investigation for a price-fixing scheme.
How did authorities wrap Martin up in a government investigation?
Another Fortune 100 company contacted the Department of Justice in search of a non-prosecution agreement. The cooperating company identified Martin’s company as being part of the price-fixing scheme. Authorities alleged that Martin “knew or should have known” about the price-fixing scheme.
Had Martin known more about how the criminal justice operated, he could have launched a mitigation strategy long before the charging decision.
People that understand the system may coordinate a mitigation strategy that results in a pre-charging plea agreement. That type of strategy may advance possibilities for a sentence that does not include imprisonment. In the alternative, it may lessen exposure to the possible loss of liberty.
Sometimes, the best possible outcome is different from what we want. As Mick Jagger sang, we can’t always get what we want. But if we try sometimes, we get what we need.
After the Charging Decision:
If the prosecutor has decided to bring a criminal charge, particularly for a white-collar crime, the person needs to begin contemplating the next steps. Ordinarily, a person will try to hire a defense attorney that specializes in white-collar crime. That defense attorney will likely have exceptional analytical skills. The attorney may also want to control the ecosystem—advising the person to allow the defense attorney to make every decision going forward. A defense attorney will then go through the slow, arduous process of discovery, hoping to learn what the government can or cannot prove.
Once authorities charge a person with a crime, that person’s status changes. He or she becomes a defendant.
- The attorney may advise the person not to research or learn about how the system operates.
- Each person must decide whether he or she wants to learn more or remain oblivious to the entire process.
- Would a person empower himself or weaken himself by learning more about mitigation strategies at each stage of the journey?
- Does strength come from more information?
- Does more information help a person make better decisions?
- Can learning more about what others have done to work toward a mitigation strategy help or hurt an individual?
Before a Verdict or a Finding of Guilt:
Once authorities bring a criminal charge, the person will need to decide how to plead. In most cases, defense attorneys will advise people to plead not guilty at the start of the proceedings. During a “discovery” phase, attorneys will want to gather information about the evidence prosecutors will present to fact finders. The defense attorneys will assess their likelihood of prevailing in a trial.
To convict a person in a criminal case, prosecutors have a higher “standard of proof.” In a trial, the prosecutors must persuade all jurors that the defendant is guilty beyond a reasonable doubt. Or, as the judge that presided over my trial said:
- “Beyond a reasonable doubt doesn’t mean all doubt. A person can have a little doubt about whether the person is guilty, and still convict.”
Before a finding of guilt, a person should think these challenges through. The more a person knows and understands, the better a person prepares himself or herself to engineer an effective mitigation strategy. Some questions to consider:
- What are the characteristics of the people that would sit on a jury?
- What initial reaction do people have when they see an indictment that reads “United States of America versus” your last name?
- How much time and effort will the government’s team invest to get the outcome they want?
- How vested will members of the prosecutorial team be in obtaining a conviction?
- What role would inherent bias have in the entire proceeding?
- What resources will your defense attorney have to advocate on your behalf?
- What would be the highest and best use of the resources that you have available, given the situation at hand?
A person’s responses to such questions should influence the way a person engineers a mitigation strategy.
After a Finding of Guilt:
After a jury convicts a person, or after a person pleads guilty, the individual should invest time to learn about every step that will follow. The more person knows about the journey ahead, the better a person can prepare. For most people, the journey will include the following:
- A Presentence Investigation (PSR): If a person doesn’t fully understand what takes place during a presentence investigation interview, then the person stands vulnerable to saying something or presenting something, that may have an adverse influence on a person’s ability to self-advocate later in the journey.
- Sentencing Hearing: If a person doesn’t know or understand how a sentencing hearing takes place, a person won’t be ready. Each person should invest the time to learn. The more a person knows about what the law requires a judge to consider, the more a person can work toward an effective mitigation strategy.
- Prison Administrators: Although it’s understandable that each person focuses on the sentencing hearing before going into the system. Sadly, a criminal charge has a long afterlife. Many people will have discretion over the person’s life. Once a person goes into the system, the lawyer will have little to no influence. The person must develop the tools and resources to become an effective self-advocate. An effective mitigation strategy should consider every person that will have influence in the weeks, months, years, and decades to come. Those people will include:
- Administrators will have discretion on where the person serves the sentence,
- Staff members that will have an influence on the person’s daily life in prison,
- People with whom the person will serve the term,
- Case managers that will have an influence on when the person transitions to either a halfway house or home confinement,
- Case managers will have an influence on the level of liberty a person will have on the other side of the journey,
- Probation officers that will have an influence on whether the person can travel, or where the person will work upon release,
- A federal judge that will preside over whether the person can qualify for early termination of Supervised Release,
- People in the business community that will have an influence on the person’s access to capital and financial services,
- The broader community will always be able to learn about the conviction through a simple Internet search.
If a person doesn’t know how to answer each of the questions above, then it may make sense to learn more about mitigation strategies from people with experience.
Our YouTube channel offers an abundance of free information; our Blog at Prison Professors offers more insight.
For those who want to talk with an expert, please consider a free consultation with our mitigation experts. Consider scheduling an appointment with Sam by clicking the link below
Our mitigation experts are particularly effective at helping people design personalized mitigation strategies for every stage of the journey ahead. Check out our reviews on TrustPilot to learn more.
Previous Version of this Article
- The information below is from a previous version of this article. We encourage you to watch the videos with federal judges.
If you’re facing a sentencing hearing, raise your level of confidence with solid preparations. The series below will give you insight, helping you to work more effectively with your lawyer.
Since there is a considerable amount to learn, we’ve broken this article into several sections. Although we recommend that you learn as much as possible, we value your time. The subheadings will help you find what is most relevant to you, depending upon your given stage of the journey. We’ll cover:
- Judicial Proceedings
- Preparing for Court
- Perspectives
- Understanding Mitigation
- Defense Attorneys
- Trial Complexities
- First-Person Narratives
- Tiered Plans
To be fully transparent, you should know the perspective from which I’m writing. My name is Michael Santos. As a result of some bad decisions I made as a young man, I served 26 years in federal prisons of every security level. That information is relevant for a couple of reasons:
- I want readers to know that I’m not dispensing legal advice, and
- I want readers to know that I’m revealing what I wish I would have known when I faced a sentencing hearing.
Although the lawyer representing you will prepare a sentencing memorandum for the judge, the lawyer may not have time to help you understand the entire process ahead. Those who don’t know the sentencing process miss out on an opportunity to engineer a pathway toward the best possible outcome. Such lessons would have been enormously helpful to me at the start of my journey.
Our entire team believes such lessons will be of value to you.
Judicial Proceedings
What do you need to know if you become the target of a criminal investigation?
Our answer to the first question is simple: A lot!
Many people that face law-enforcement challenges make decisions that exacerbate their problems. They don’t mean to worsen their troubles by not preparing for court. Yet if they don’t understand what’s coming, what options they have, or where to turn for information that will help them make better decisions, they’re vulnerable.
Targets of both civil and criminal investigations can unwittingly talk themselves into a criminal indictment. They may eliminate opportunities for a diversion from prosecution. Or they may expose themselves to more stringent sanctions.
If a person doesn’t have any experience, a primer on the system helps. With more knowledge, a non-specialist will feel more competent as he interacts with a criminal lawyer. Without experience, a person will always feel as if he’s operating from a position of darkness, never knowing what’s around the next turn.
Preparing for Court:
We can paraphrase an old Chinese proverb:
- If you want to know the road ahead, ask someone that has come back.
Operating without knowledge makes us feel as if we’re hanging from a string as if we’re marionette puppets. To stop that helpless feeling and restore confidence, we need to learn; then, we need to make deliberate decisions that will influence best-possible outcomes.
Defendants learn quickly that problems with the criminal justice system can lead to enormous costs. It isn’t only money. Liberty is at stake. Future earning power is at stake. Collateral consequences—like access to banking, housing, career opportunities—can linger for a lifetime. Don’t take our word for it. Easily verifiable statistics show the fallout for those who have been targeted by the criminal justice system.
It’s crucial to prepare, and it makes a great deal of sense to learn.
The learning process begins with the reality that many people get sucked into the criminal justice system. Although going through the system is difficult, there are best-practice ways to prepare.
According to a 2019 report by the Prison Policy Initiative, the American criminal justice system holds almost 2.3 million people in the following locations:
- 1,719 state prisons,
- 109 federal prisons,
- 1,772 juvenile correctional facilities,
- 3,163 local jails, and
80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.
Not everyone that goes into the system gets the best outcome. Those that learn more can prepare more.
Think About the Perspective of Others:
By learning about the system, people facing criminal charges put themselves into a different algorithm, framing possibilities for a better outcome. With critical thinking skills, targets or defendants may influence decision-makers. A person’s mitigation strategy should result in stakeholders viewing a defendant through a different lens.
A prudent defendant will work to create a story, one that will help others see him as a fellow human being rather than as a cog to grind through a criminal justice machine.
All people facing challenges with the criminal justice system share common traits. Their family members, friends, and colleagues care about them.
- Defendants would like to live in a world where investigators, prosecutors, probation officers, and judges see them as ordinary citizens.
Prosecutors may charge people with a crime, but defendants, like all people, have many attributes that are reflective of their character. A crime may be an aberration, a one-time act that is contextual and doesn’t resemble how they would act in most circumstances.
Yet once the criminal justice system targets people for prosecution, stakeholders in the system turn their attention to the alleged criminal wrongdoing. A criminal charge can stop stakeholders from looking at an individual as a human being. In an instant, the person becomes a defendant. The goal or objective for prosecutors is not always justice. Some prosecutors want a conviction followed by a punitive sanction.
The prudent defendant will always introspect, asking questions about what he can do to prepare for a better outcome.
Targets of criminal investigations would like to find some type of diversionary program to avoid prosecution. If they’re prosecuted, they want the best possible outcome. For most people, the best result means the least restrictive or least punitive sanction—preferably a sentence that does not include incarceration.
But how does a person go about getting the best outcome? Unfortunately, statistics show that few people who encounter the criminal justice system know how to position themselves for the best possible result.
Understanding Sentence Mitigation
When is the right time to think about a sentence-mitigation plan?
Answering that question reminds me of an old saying about the best time to plant an oak tree. I heard a speaker ask that question to members of his audience. Predictably, audience members ventured a guess.
- In the morning?
- In the winter?
- In the summer?
No one had a clue.
Pausing for dramatic effect, the speaker then answered. The best time to plant an oak tree was 20 years ago. The second-best time is today.
We could say the same thing about a sentence-mitigation plan. Too often, a defendant doesn’t do anything to prepare for the sentencing hearing.
It’s understandable. Many defendants don’t think of themselves as criminals. Regardless of what type of activity brought them to the attention of authorities, they believe that they’re different, immune from law enforcement. They may not know anyone that has been through the criminal justice system, and they cannot conceive of themselves going into the system.
- How do you see yourself?
When federal authorities target a person for trial, their conviction rates exceed 85 percent. With those odds, it makes a lot of sense to begin thinking about a sentence-mitigation plan at the soonest possible time. Regardless of what type of charge a person faces, it’s essential to realize that sentencing proceedings will likely follow.
Sentence-mitigation plans can help.
Start with an understanding of what the defense attorney will do. Attorneys will work with:
- The evidence against the individual,
- The procedural rules that determine what evidence the court will consider,
- The substantive law that Congress has passed,
- The case law that judges have decided,
- The prosecutor’s ability to prove a case against the defendant.
To succeed, the defense attorney will exercise judgment and discretion, fighting valiantly to get the best possible outcome for the defendant. Both the prosecutor and the defense attorney will be analyzing the case and pressing forward to get the result they want. Rather than justice, the prosecutor will strive for a conviction. The defense attorney will parry the prosecutor’s efforts, always assessing the strength of arguments that he can use.
While the defense attorney may be a great analytical thinker, he may not have time to listen to the defendant’s life story. For that reason, every defendant should invest the time and energy to present that life story.
A life story can make all the difference in the world when it comes to sentencing. Indeed, our team has worked closely with many federal judges. We’ve spoken with dozens of federal judges about the importance of preparing for sentencing. Two of those federal judges sat for an interview with us. I asked those judges what steps a person could take to influence the judge’s decision. Each judge responded by saying that, when it comes to sentencing, they want to hear from defendants.
Our interviews with both judges are available for free through our YouTube channel under the following playlist:
- Judge Mark Bennett from the Northern District of Iowa
- Judge Stephen Bough from the Western District of Missouri
- How to Prepare for Sentencing:
- https://www.youtube.com/playlist?list=PLf7W0veN3NWbq9nzGNmhQliFbqmaXz26y
Defense Attorney’s Position:
Some defense attorneys support a pro-active sentence-mitigation plan, while other defense attorneys resist such initiatives.
Why?
As stated above, attorneys are great analytical thinkers. Since they know it’s the prosecutor’s burden to prove a case, they operate out of an abundance of caution. They do not want to introduce any evidence that a prosecutor could use against their client. And since most defendants start in denial, incapable of fully appreciating the system or the charges against them, some attorneys do not want their clients to say anything.
Attorneys may have invested considerable amounts of time in constructing an elaborate defense. They do not want their clients to make statements that prosecutors may twist, making it more difficult for the attorney to argue for leniency at sentencing. Defense attorneys may prefer to rely upon case law, facts, and what the prosecutor could prove.
We have a different perspective. Our team has interacted with more than 1,000 people that have gone through the criminal justice system. We’ve had personal interactions with state and federal judges. Based on our experience, defendants put themselves in a far better position when they engineer an effective sentence-mitigation plan. When a person creates and executes an effective sentence-mitigation strategy, that individual does immense service to his defense attorney.
In our view, an effective sentence-mitigation plan will strive to achieve several outcomes:
- It will help the judge see and understand a defendant as an individual,
- It will help the judge grasp influences that led the defendant to the current situation,
- It will help the judge see aspects of the defendant’s life that could not be conveyed by the defense attorney’s eloquence alone,
- It will help the judge see the defendant in his environment,
- It will help the judge learn what other people in the community think about the defendant.
Engineering an effective sentence-mitigation plan does not excuse the misconduct. Nor would a sentence-mitigation strategy argue against the facts of the case. A sentence-mitigation plan does just the opposite. It is a strategy to show the judge why the defendant is worthy of mercy. It would not serve a defendant’s interest to minimize liability or to blame anyone. If referring to the criminal conduct at all, the sentence-mitigation plan should focus on some key points, including:
- Show an understanding and an appreciation for the victim’s pain, suffering, or loss.
- Show influences that led the defendant to become involved in the instant offense.
- Show what the defendant has learned from the experience.
- Show what steps the defendant has taken to reconcile with society, the victims, and his community to make things right.
- Articulate a coherent plan to show why the defendant will never break the law again.
What if I Go to Trial?
The vast majority of people charged in a criminal case start with a not-guilty plea. Their defense attorneys then assess the evidence and the risks of proceeding through trial. Then the attorney negotiates the most favorable plea agreement possible. Still, a small percentage of defendants maintain their innocence and proceed through trial.
If a defendant proceeds through trial and is found guilty, that defendant may want to appeal. In that case, the defendant will want to create a sentence-mitigation plan that does not threaten the prospects for an appeal. Accordingly, he should refrain from discussing any aspects of the case. Instead, such a strategy should focus exclusively on helping the judge get to know him as a person.
There is always an opportunity to create a mitigation strategy. It is equivalent to building a sales presentation. And how do we accomplish that goal? We begin by thinking about our audience. A sentence-mitigation plan has an audience of one: the judge.
- What steps can you take to differentiate yourself from every other defendant that comes before the judge?
First Person Approach:
Let your lawyer argue the law and deal with the evidence against you. When it comes to articulating the story of your life, use your own words, in a first-person voice. From our perspective, this is common sense.
Your lawyer is a professional advocate, skilled in the arts of persuasion. Even if the most notorious criminal retained your attorney, a professional code of ethics would require your attorney to provide the most zealous defense possible. After decades of practicing law, judges know that the defense attorney is going to argue for leniency at sentencing.
While deliberating over the appropriate sentence, the judge isn’t too concerned with arguments on case law. He has read the case law; he has his own opinion. On the other hand, he doesn’t know much about the defendant.
Before sentencing, defendants have an opportunity to influence the outcome. Again, a defendant does well when he starts from the premise that he’s about to make the biggest sale of his life. The only question is how well he has prepared, or how much time, energy, and resources he wants to invest to build a persuasive case.
Three-Tiered Plan:
At Prison Professors, our team has developed a theory. We believe that an effective sentence-mitigation plan should begin at the soonest possible time. No one can change the past. But any of us can start crafting a story that will show who we are as individuals and how we got here. We’re big believers in a three-tiered strategy that includes:
- A personal sentencing narrative
- A strategic character-reference letter campaign
- A sentence-mitigation story of community service
- Bonus: A sentencing video
Sentencing Narratives:
Based on what we’ve learned from judges, we believe that defendants serve themselves well when they write first-person, sentencing narratives. For defendants that have pled guilty, the sentencing narratives should adhere to the following five-points:
- Show an understanding and an appreciation for the victim’s pain, suffering, or loss.
- Show influences that led the defendant to become involved in the instant offense.
- Show what the defendant has learned from the experience.
- Show what steps the defendant has taken to reconcile with society, the victims, and his community to make things right.
- Articulate a coherent plan to show why the defendant will never break the law again.
If a jury or judge convicted the defendant after a trial, then it’s essential to consider the appellate strategy. Either way, a well-constructed narrative should focus on the judge’s perceptions, using our five-points as a guideline.
We’ve worked with many individuals that prepared effective sentence-mitigation strategies, even though they did not accept responsibility before being convicted after a trial.
Every case is different. There is no cookie-cutter approach. And there is no guarantee that a personal sentencing narrative will influence the judge. A defendant that engineers a well-crafted sentence-mitigation strategy will be in a better position than if he were to remain silent. No one should leave the judge without clarity about a person’s mindset, or the influences that led him into the predicament at hand.
Now remember some basic lessons from writing. When creating a well-structured letter, consider the audience. Judges get inundated with paperwork. When crafting the message, think about length.
Our recommendation is to write a document of between 1,500 and 3,000 words. Some narratives may go longer. Yet, in our experience, we’ve found this word count to be sufficient to write a coherent narrative. Keep in mind that we’re advocating for a multi-pronged approach that would include far more than the sentencing narrative.
The art of writing is re-writing. Take time to get it right. Ask others to read through the document. Other readers may offer guidance that can prove beneficial.
When it’s complete, share the letter with your defense attorney and consider his advice on steps to strengthen the document.
Character-Reference Letters:
The second component of an effective sentence-mitigation strategy includes a well-coordinated character-reference letter campaign.
See our Prison Professors YouTube playlist:
- How to Prepare for Sentencing:
- https://www.youtube.com/playlist?list=PLf7W0veN3NWbq9nzGNmhQliFbqmaXz26y
We reveal what we’ve learned from judges about character-reference letters. The judges with whom we’ve spoken tell us that rather than receiving character-reference letters from high powered professionals or celebrities, they want to hear from people that knew the defendant best. They want to read stories that offer details showing something about the defendant’s character.
For example:
- If the defendant volunteered as an athletic coach, perhaps someone from the team could write about memorable experiences of working with the coach.
- If the defendant volunteered in the community, perhaps a program director could write about how the defendant helped someone without expectations of receiving anything in return.
- If the defendant helped a sick neighbor with lawn care, or grocery shopping, that testimonial would show a great deal about the defendant’s character.
Ideally, the person that writes the character-reference letter should reveal that the defendant has been open and honest about criminal behavior. Judges want to know that the defendant has not been deceptive. If the writer feels that the defendant has expressed remorse, then the writer should show what he has seen.
Judges with whom we’ve spoken told us that ideally, a defendant would be selective. Rather than submitting an overwhelming number of letters, the judges with whom we’ve spoken said that it’s far better to send a few, well-crafted letters. Based on what we’ve heard, judges do not want to receive more than a dozen character reference letters—especially if they all present the same message.
Caveats:
Character-reference letters should never make excuses for the defendant. It would not serve the defendant’s interest if the character-reference letter:
- Wrote that the defendant wasn’t at fault,
- Stated that the government or jury got it wrong,
- Opinionated that the defendant should not be going to prison,
- Followed a template that many others wrote.
Judges want to hear about the defendant’s character. That is all. They do not want to listen to the writer’s opinion about the case, or the fairness of the judicial system. Nor do they want others to tell the judge what sentence would be appropriate. The judge wants to hear from those that know the defendant best. If they know about the defendant’s conviction, and they still express a willingness to support him, that says a great deal.
Sentence-Mitigation Story:
Finally, defendants that have the time and energy may want to build a story of mitigation. This strategy can include participation in a course or the creation of a class. It can consist of biography or some type of vehicle that shows the defendant’s commitment to making things right.
Those who have an interest in how crafting a comprehensive sentence-mitigation strategy may want to contact our team to speak with some of our sentence-mitigation experts.
In summary, every person that faces a sentencing hearing should realize that he’s about to make the sale of his life. Invest the right amount of time to do an exceptional job.
