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 Sentencing Mitigation Factors 

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Michael Santos

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Sentencing judges consider a person’s good character, prior career, and achievements as mitigating factors. Make sure the judge knows.

SENTENCING MITIGATION FACTORS THAT WORK (ONE IS KEY)

INTRODUCTION

We publish much information regarding the presentencing and sentencing processes in the United States criminal justice system to help those affected learn. 

Indeed, members of our team are recognized experts in the area of sentencing mitigation. Click on the links below for helpful sentencing mitigation clips.

Prepare for a shorter prison sentence clip #1

Prepare for a shorter prison sentence clip #2

The sentencing mitigation strategies Justin Paperny discusses with Dr. Phil in the above interview clips are very beneficial to people facing criminal punishment. 

In fact, in a recent military court-martial hearing, a sentencing judge reduced an officer’s sentence based on factors like the ones we teach our clients. Preparation for sentencing is crucial.

*Pro-Tip: Remember to consult legal counsel regarding any court case. We work alongside (not in place of) legal counsel to help clients obtain better outcomes.

DISCUSSION

Virtually every person facing criminal punishment wants to know how to obtain a better outcome, including a lower prison sentence when prison time is inevitable. When sentencing, judges must consider not only aggravating factors but mitigating circumstances as well.

Mitigating factors are those that a sentencing judge may consider to give a person a lesser sentence. They may or may not relate to the question of guilt or blame, but they support leniency. In other words, a judge can consider any information that reasonably relates to the offense or the offender, including mitigating factors.

Sentencing can be a challenging process, and many factors affect the actual punishment doled out at sentencing. For example, restitution payments, credits for good behavior while in custody, or prison-alternative work programs, are all factors courts regularly consider. And the final punishment can take many forms, including fines, probation, community service, restitution, and other consequences.

Common Mitigating Factors

Generally speaking, courts take many of the following considerations into account when sentencing a criminal defendant:

  • The nature, circumstances, and seriousness of the offense. For example, the defendant played a relatively minor role in the crime. Or, the defendant acted out of a desire to provide life necessities (like stealing groceries to feed a starving family).
  • The personal circumstances and vulnerability of any victim of the offense due to the victim’s age, occupation, relationship to the defendant, disability, or otherwise. For example, if a victim willingly participated in the crime or initiated the events leading to it, the defendant can raise this at sentencing as a mitigating factor. 
  • The extent of any injury, emotional harm, loss, or damage resulting from the offense or any significant risk or danger created by the offense, including any risk to national security. Lack of direct harm, for example, is a mitigating factor when no one was hurt or the defendant committed the crime in a manner unlikely to cause harm to others. 
  • The defendant’s character, general background, and offending history. This category includes circumstances such as (1) no prior criminal record (the defendant doesn’t have a criminal record or only has a relatively minor record); (2) personal history (including the defendant’s unique upbringing or family circumstances, history of abuse and the like);
  • The likelihood of the defendant re-offending and prospects for rehabilitation is a significant factor that works either against or in the defendant’s favor.
  • The defendant’s age and physical and mental condition (including any cognitive impairment). 
  • The defendant’s drug or alcohol addiction contributed to the crime and affected the defendant’s intent. 
  • The extent of the defendant’s remorse (see acceptance of responsibility factor, below).
  • The defendant’s acceptance of responsibility for their actions. For example, defense counsel can raise this mitigating factor at sentencing when a defendant confesses upon arrest and is contrite in court.   
  • The defendant has acknowledged any injury, loss, or damage caused or voluntarily made reparations for any such injury loss or damage. Restitution to the victims, for example, falls under this category of sentencing mitigation in white-collar cases.
  • Unusual circumstances. This factor serves as a catch-all opportunity to discuss highly-specific circumstances to the defendant with the sentencing judge. For example, defense counsel might highlight that the defendant committed the crime because of temporary emotional difficulty or significant provocation or that the defendant acted out while under extreme stress. 

Recent Military Case

The U.S. Marine who posted videos on social media criticizing military leadership and the country’s military withdrawal from Afghanistan pled guilty to all charges during his court-martial hearing this week. 

Lt. Col. Stuart Scheller Jr. pled guilty to six misdemeanor charges, including willfully disobeying a superior commissioned officer, dereliction of duty, and conduct unbecoming an officer and a gentleman. His other charges include contempt toward officers, disrespect toward superior commissioned officers, and failure to obey order or regulation. 

According to press reports, Scheller was relieved of his command at one of Camp Lejeune’s infantry training battalions in August after posting offending videos to Facebook and LinkedIn.

At sentencing, the court issued a letter of reprimand and ordered forfeiture of $5,000 worth of pay for one month. 

Significantly, the sentencing judge indicated that he would have given a harsher sentence — two-month forfeiture of pay — had it not been for the officer’s prior record and the nine days Scheller spent in pre-trial confinement. Scheller was held in confinement after violating an agreement to stop posting criticism of his superiors on social media.

In addition, the judge said he does not condone Scheller’s offenses but noted his 17-year military career and the fact that before his social media incident, he was an officer with an outstanding record. The sentencing judge heavily weighed the defendant’s prior record. 

The letter of reprimand was much less than what the prosecution recommended. The prosecution requested forfeiture of $5,000 of pay for six months and a letter of reprimand. The maximum penalty could have been forfeiture of 2/3 monthly pay for 12 months and a letter of reprimand.

Sentencing Judges Have Discretion

Not every mitigating circumstance will work equally in every case. 

Sentencing judges have broad discretion to consider both aggravating and mitigating circumstances at sentencing and can weigh factors differently for different defendants depending on the case. An argument that does not appeal to one judge might resonate with another, and it is a case-by-case analysis. Moreover, a sentencing judge does not have to articulate every reason for the sentence, although sometimes judges do.

For example, when defendants have raised their waiver of the right to a jury trial, or harsh prison conditions a defendant might face, different courts have weighed these differently. But as long as it bears some relation to the crime and the defendant, counsel can present just about every fact in the defendant’s favor at sentencing. 

In the military court-martial case discussed above, the judge indicated that he heavily weighed the defendant’s stellar military career before these charges. 

CONCLUSION

In all settings — federal, state, or military courts– sentencing judges consider a person’s good character, prior career, and prior achievements as mitigating factors. Defendants facing criminal punishment must ensure their judge knows about their excellent character, prior career and contributions to society, and any other mitigating factors. Ensuring the sentencing judge knows all mitigating factors can change the outcome of a case, as it did for marine officer Scheller at his recent court-martial hearing. 

Follow the Prison Professors blog for regular articles regarding the criminal justice system. An Earning Freedom company, Prison Professors regularly works with clients to craft strategies to mitigate criminal punishment and obtain better outcomes.

We encourage clients to demonstrate at sentencing, through their own efforts, what they have learned and why their conduct was out of character or why otherwise they have had a distinguished life. These mitigating factors are essential for a sentencing hearing, and they helped Scheller at his military court-martial.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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