Sentence Mitigation and Hearing

LESSON 3
Sentence Mitigation and Hearing
YOUR GUIDE TO PREPARING FOR PRISON AND BEYOND
Lesson 3: Sentence Mitigation and Hearing
Lesson #3: Sentence Mitigation and Hearing
At Prison Professor, we encourage our clients to work closely with their defense attorneys. In the beginning, clients help their attorneys best by offering complete honesty, with as much detail about the offense as possible. 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, which I elaborated on in the previous
lesson. 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.
At Prison Professor, our expert consultants routinely provide personal assistance to defendants who
want to 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,
which our experts have in abundance. 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:
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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.
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Lesson 3: Sentence Mitigation and Hearing
Because the sentencing hearing will have an enormous influence on the life of the defendant and the
defendant’s family, Prison Professor urges all clients to make preparations a priority. Those who choose
to work independently in preparation for sentencing may find value in this guide that Prison Professors
rely upon when developing sentence-mitigation packages for the clients who retain us. Our advocates
strive to identify, understand, and persuasively present all mitigation evidence that will empower defense
attorneys who argue for the lowest possible sentence.
The Interview:
The first step Prison Professors take is to interview the client. When interviewing a client, we want
to learn everything. We have hopes of finding anything that may help the case. A prison professor may
invest several hundred hours to listen and learn. The information gathered 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.
Introspection:
Obviously, individuals who prepare their own sentence-mitigation packages will not have 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.
If a Prison Professor were conducting the interview, he would ask one question after the next. Then he
would listen, prompting for more detail, asking follow-up questions only after the client has exhausted his
explanation. 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.
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Lesson 3: Sentence Mitigation and Hearing
Prison Professors may start the interview with questions such as:
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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
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.
Focus:
A Prison Professor would help his client understand the objective of this exercise. Likewise, individuals who create their own sentence-mitigation strategies should have the same focus. 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
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Lesson 3: Sentence Mitigation and Hearing
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.
Ancillary Interviews:
After interviewing the defendant, Prison Professors who work on sentence-mitigation strategies take
the next step of interviewing those who are close to the defendant. Those interviews, also, can yield treasure troves. The more people the Prison Professor has access to interview, the more compelling he can
make his argument to show that the defendant is much more than the charges for which he is about to
be sentenced. Each interview should reveal new layers that further develop the redeeming qualities and
characteristics of the defendant.
Prison Professors seek to interview every individual who can show positive traits of the defendant.
They can corroborate or supplement information. 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:
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All family members
Employer
Colleagues
Bankers
Accountants
Coaches
Teachers from childhood
Professors
Clergy
Fellow worshipers
Volunteer recipients
Friends
Business associates
Mentors
Mentees
Prison Professors want to listen and learn from everyone who can help us paint a more comprehensive picture of our client. 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:
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Name
Occupation
Relationship
As many details as possible that show:
• How the relationship began.
• Positive influence defendant has had on the character witness’ life.
• Contributions the defendant has made to build a better community.
• Level of support the witness pledges toward the defendant.
• 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. If a defendant cannot work with Prison Professor to build a comprehensive sentence-mitigation package, then the defendant must 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. At Prison Professor, we want judges and
probation officers to perceive our clients differently. We want them to see our clients as human beings
who have fallen into unfortunate circumstances, but also to comprehend the influences that contributed to that fall. When Prison Professors elicit empathy from those who judge our clients, they know that
they’ve brought value. Defendants who create their own sentence-mitigation strategies must begin with
that same end in mind.
Life Records:
After concluding all of the interviews that time and resources will allow, a Prison Professor would
take the next step toward creating the effective sentence-mitigation strategy. That step begins with col-
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lecting records that would corroborate or support all that our narrative shows. Essentially, an effective
Prison Professor will want as much information as possible. After collecting those records that document
and support the argument that a minimally invasive sentence is warranted, the Prison Professor will
begin to compile his narrative.
The defendant who chooses to compile his own sentence-mitigation strategy may choose to follow
this same approach. Prison Professor encourages those defendants to recognize that the interviews and
records will show his life and path to the offense; if presented effectively, that information will elicit a
higher degree of empathy from those who are about to pass judgment upon the defendant. 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.”
Testimonial Letters:
In addition to conducting extensive interviews, gathering records, and drafting out a compelling narrative that would show reasons why our client is worthy of the least possible sentence, a Prison Professor
would also work with the client’s character references to write effective testimonial letters. Again, such
letters serve the purpose of showing that our client is much more than the criminal conviction would
suggest. Since few defendants would be able to compile an extensive list of testimonial letters, the defendant who does stands out.
Defendants who accept the challenge of crafting their own sentence-mitigation package would be
wise to recognize that people are busy. Although individuals may have every intention of writing a powerful testimonial letter, life can get in the way. Prison Professors take a proactive approach. They draft
the ideal letter that they would like to receive. Then they send the draft letter to the intended recipient,
explaining how essential the character witness’s written testimony is to the sentence-mitigation strategy.
Such an approach enhances the possibility for the defendant to receive the letters he needs. Those who
prepare their own packages may want to follow a similar strategy.
Persuasiveness:
At Prison Professor, experience convinces us that investing in an effective sentence-mitigation strategy makes all the sense in the world for individuals convicted in federal court. After all, 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:
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Mental state of mind
Emotional condition
Substance abuse
Remorse
Recompense
Motivations
Treatment
Physical condition
Physique
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.”
For that reason, Prison Professor is adamant about working with clients to prepare the most effective sentencing-mitigation strategy as possible. We encourage individuals who cannot work with Prison
Professor on an independent basis to invest themselves fully in their effort to make a persuasive case for
leniency. They must provide their defense attorney with the necessary resources to argue forcefully.
Alternative Sentences:
As a final word on the sentencing-mitigation package, Prison Professor advises its clients to consider
alternative sentences that they may propose for the judge to consider. Depending upon the offense, judges have discretion of sentencing the defendant in ways that do not require imprisonment. If an alternative
sentence is a possibility, the sentence-mitigation package should include suggestions.
For example, defendants who have been convicted of white-collar crimes may work to prepare a
package that shows why incarceration would be less appropriate than a community-based sanction. This
package may include verifiable facts that contrast the cost of incarceration with the alternative sanction.
Further, the package should highlight why the alternative sanction would not minimize the severity of
the offense, while at the same time providing some type of benefit to the broader community.
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Lesson 3: Sentence Mitigation and Hearing
Federal judges rarely impose alternative sentences, but defendants who make the most compelling
case stand the best chance of minimizing time in prison. Prison Professor worked with one defendant
who was convicted of bank fraud. Rather than serving a lengthy term in prison, the judge agreed to split
the defendant’s sentence to a portion of imprisonment and a portion of home confinement, provided that
the defendant follow through on a commitment to lecture students on the consequences of criminal behavior. Had the sentence-mitigation package not mentioned the alternative sentence, the judge may have
ordered the defendant to serve the entire sentence locked in the Bureau of Prisons.
Allocution:
At Prison Professor, we work with our clients to make effective oral presentations at the sentencing
hearing. Defendants who do not work with Prison Professor should invest the time necessary for this
essential part of the hearing. We encourage defendants to write out a presentation. Edit the presentation.
Improve upon it. Then practice, practice, practice. Although judges routinely listen to the eloquence of
lawyers, they rarely hear from defendants who present poignant, relevant pleas for leniency. Defendants
who truly want to receive the lowest possible sentence will invest themselves fully in the effort. That effort
should include a well delivered personal plea.
Financial Sanctions:
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. At Prison Professor, we’ve worked with many clients who have succeeded in persuading the judge to write a stipulation into the sentencing order, which eased the individual’s time in prison. We discuss these issues of financial sanctions in more detail in later lessons.
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Lesson 3: Sentence Mitigation and Hearing
Process:
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.
Questions:
• 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?
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