Get Started by Preparing
When is the right time 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 gave the answer. 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 think that they’re different, immune from the 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?
If I were to respond to that question at the start of my journey, I would have had one perspective. Authorities would have had a different perspective.
When federal authorities target a person for prosecution, 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 important 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 outcome 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 person who becomes a defendant should work to create a series of assets that may influence the perception of the judge and other stakeholders.
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. Our website includes interviews I’ve done with two separate federal judges. I asked Judge Bennett and Judge Bough what steps a person could take to prepare for the possibility of leniency at sentencing. 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 Prison Professors YouTube channel, under the following playlist:
- 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 out 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 to construct 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, we’re convinced that defendants put themselves in a far better position when they engineer an effective sentence-mitigation plan. When a person creates and executes on 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 the 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 own 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 or litigate the case. In fact, 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 culpability, 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 off with a not-guilty plea. Their defense attorneys then assess the evidence and the risks of proceeding through trial, then negotiate 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 a jury finds him guilty, that defendant may want to appeal. In that case, the defendant will want to create a sentence-mitigation plan that does not in any way 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 strategy 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.
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.
Prior to 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:
Our team believes that an effective sentence-mitigation plan should begin at the soonest possible time. No one can change the past, but any of us can begin 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
- In some cases, it may also make sense to create 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 five-point list stated above, but that we’ll repeat again here:
- 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 important to consider the appellate strategy. Either way, a well-constructed narrative should focus on the judge’s perceptions, using the five-point above as a guideline. We’ve worked with many individuals that prepared effective sentence-mitigation strategies, even though they did not accept responsibility prior to 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. That said, based on our extensive experience, we’re convinced that a defendant that engineers a well-crafted sentence-mitigation strategy will be in a better position than if he were to remain silent, leaving the judge without any clarity on his mindset or the influences that led him into the predicament at hand.
As with any well-structured letter, it’s important to begin with thoughts of the audience. Judges get inundated with paperwork. When crafting the letter, think about length. Our recommendation is to write a document of between 1,500 and 3,000 words. Some documents 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.
Defendants should strive to write a highly personal story, adhering to the five-point plan above. 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 read letters 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 the 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 express 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 submit 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 hear the writer’s opinion about the case, or the fairness of the judicial system. Nor do they want others telling the judge what sentence would be appropriate. Basically, 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 comprehensive story of mitigation. This strategy can include participation in a course, or the creation of a course. It can include a biography, or some type of vehicle that shows the defendant’s commitment to making things right.
Visit the section of our website we discuss Reputation Building to get an idea of some innovative approaches you can take to show your willingness to reconcile, or atone. The only limit you have is your imagination.
Conclusion:
Our team feels strongly that when a defendant invests the time, resources, and energy to architect and build these multi-part sentence-mitigation strategies, they advance prospects for the best, possible outcome. Since each component takes a long time to prepare, we urge defendants to begin at the soonest possible time. Ideally, the sentence-mitigation strategy should be well developed before the pre-sentence investigation takes place.
