91. What is a Sentence-Mitigation Plan?

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? But authorities saw me differently. In their eyes, I violated securities laws. That made me a target for prosecution. And 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 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. Our website includes two interviews that my partner Michael did with federal judges. Michael 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 Prison Professors 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 If you cannot access the link because you're reading this book in print, simply Google How to Prepare for Sentencing + Prison Professors and you'll find our helpful videos on YouTube or text the following word, to the following number: Text word: Sentence Text to number: 44222 You'll get an automatic brochure sent to your phone. 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? As stated in previous lessons, 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 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 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. From our perspective, this is a 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. 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 sentencing video A sentence-mitigation story of community service