Michael Santos: Hi, I am Michael Santos with Prison Professors. I’m going to be sharing with you, an interview I conducted with the federal district court judge, Mark Bennett, from the Northern district of Iowa.

Judge Bennett has sentenced more than 4,000 people and today, we’re going to be discussing sentence mitigation. It’s a 35 minute interview and I’d like to present it to you in its entirety, with hopes that you or if you’re a defendant, you can learn what to do to prepare yourself for the best possible outcome. If you are a defense attorney, what you can do to help your client prepare for the best possible outcome. I hope you find value in this message. If you need further information, please contact me at michael@michaelsantos.com. Thank you.

Well Judge, I’m so excited to do this. I know that a lot of people in prison are going to welcome this opportunity to listen and learn from you. I’m just doing the best that I can, from home, to try and help people prepare for a successful outcome when they come out of prison.

Michael Santos Interviews Judge Mark Bennett

Michael Santos Interviews Judge Mark Bennett

Mark Bennett: Well, you’re certainly great for that.

Michael Santos: Well, just so you know, I am recording our conversation right now, on both audio and video and I will be using this to communicate the guidance that you can provide to people in prison. If it’s okay with you, I just like to have a bit of an organic conversation where we can listen and learn from you. For those of us who listen to the Earning Freedom Podcast so they can learn what they can do to start preparing for a successful life. I think that, the sooner they start preparing for that, the better. I know that you have had a long career on the bench and you’ve sentenced more than 4,000 people. I’d like to ask you, what have you learned from listening to the 4,000 people that have come before you with facing criminal charges and conviction and you’ve had to sentence? Could you tell us, just briefly, what you’ve learned from that long history?

Mark Bennett: Sure. There are a couple of lessons learned from 23 years on the bench, sentencing so many people in multiple different federal court jurisdictions. Couple things I’ve learned is the war on drugs is a failure. That so many of the people I sentence are really good people but they’ve made bad decisions. Often times, they’re love level drug dealers but they’re really addicts. Basically, what I’ve learned is that the sentences required by congress are too harsh and that too many people go to prison for far too long.

While prison tries, there aren’t enough resources to help people in prison to do much towards rehabilitation. There are some efforts at that but there needs to be more. The vast majority of people that I sentence are good people who made bad decisions, largely because of their addiction so I think that’s a really unfortunate situation that we’ve had this mass incarceration with these incredibly lengthy sentences. I’m not saying people don’t deserve to go to prison but, in my judgment, most people go to prison for far too long.

Michael Santos: A lot of the people who listen to Earning Freedom, they come from really, two different camps. Some of them are about to get sentenced. Some of them are already in prison. In light of what you’ve just said, I’m curious to know, what influence, an individual who is preparing to be sentences, what influence would his version of events with regard to how he got involved in the case, on the pre-sentence investigation report, what influence does that have on decisions that you make as you consider that defendant?

Mark Bennett: Well, that’s really a very insightful question Michael. One criticism that I have, not so much of offenders but the defense lawyers is that so often, they just go with the government’s offense conducts statement and they don’t spend enough time with their client, to contest matters in the offense conduct statement and give the offenders’ point of view because, a lot of times, when an offender does allocution and explain some things to me, it can differ in nuance ways from the government’s offense conducts statement and it can often be mitigated.

I think it’s really important, I mean critically important, to tell a defendant to go over that pre-sentence report many, many times, ensure that it’s totally accurate, read the offense conducts statement very carefully and really tell your lawyer how important it is to get your version of the offense conducts statement in the pre-sentence report. Then, you better have the facts to back it up if it becomes a contested issue in sentencing, which it can be. Then I listen to the evidence and I decide.

More often than not, when a defendant is willing to contest the offense conducts statement, I find their version of the offense more accurate than the government’s version because the way it’s prepared is, either the probation officer is looking through the discovery file and draws his or her own conclusions or the Assistant US Attorney prepares a one-sided offense conduct statement. I think it’s very important, if an offender can, to challenge anything in the offense conducts statement, to give a different spin on it that might then influence the judge to have a more favorable outlook towards the offender.

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Michael Santos: You have a lot of experience, not only in sentencing 4,000 people but I have had the opportunity to read some of your research papers, including one where you have reached out to I think, more than 900 federal judges and asked them about the importance of the defendant’s version of events or what brought them there. Could you tell our audience a little bit about what you’ve learned from some of your colleagues, some of the other jurists who have the awesome responsibility of determining how much punishment is warranted for a certain offense?

Mark Bennett: Yes. I think the vast majority of federal judges who do sentencing, take the allocution or the statement by the offender, usually at the end of sentencing, very seriously and weigh that. It’s very frustrating when I ask a offender, who I’m about to sentence, impose a sentence, “Would you like to say anything?” I explain that they don’t have to say anything. If they do say something, I can consider it. Sometimes it helps them. On rare occasions, it hurts them.

Sometimes it makes no difference. Then I see the individual look at the lawyer and it’s like they’re having, for the first time, you can even see them whispering to the lawyer, “Should I say something? Shouldn’t I say something?” That discussion needs to take place long before sentencing because the allocution can have a huge impact. Not in every case. Across the board, in the empirical study I did, allocution was a significant factor, hardly ever raising a sentence but, a significant portion of the time, moderating a sentence.

Maybe it doesn’t result in a below guidelines sentence but it results in a judge who was thinking about sentencing in the middle of the guidelines, to go to the bottom of the guidelines. For many judges, it can make the resolve of a guidelines sentence and a lower sentence. There are certain cautionary things that offenders need to know about. For example, I had a sentencing just last week where I came very close to increasing the sentence based on the allocution because the offender … and I had already indicated I was going down to the mandatory minimum so the offender probably should not have even given an allocution because I already said I was going down to the mandatory minimum.

The offender came very close to talking me out of it because all he did was complain about the fact that his family was upset at him. He had no empathy at all for the victims of the crime, it was all about him and his family. I found that offensive. Good allocutions take responsibility of their conduct, talk about the impact it has on the victims and especially, and this is pretty rare, indicate a solid plan of rehabilitation. What they think they can get out of prison programs and what they intend to do when they get out and something more than, “I just want to be a drug counselor when I get out,” because I hear that repeatedly and you just don’t put much stock in it.

Somebody who’s actually taken affirmative steps to have a plan towards rehab, that’ll make a huge impact on a sentencing judge if it’s sincere and believable.

Michael Santos: Judge, when we’re speaking about allocution, I think I’ve heard you, and correct me if I’m wrong but, I’ve heard you talking about what the defense attorney can do to help the court understand the defendant. My question would be, what would have a greater influence? If the defense attorney is saying, “My client did this,” or if the defendant himself has taken the time to prepare what he’s learned from the offense, how he identifies with the victim, what he’s been doing to reconcile with society, what kind of measurable, deliberate plan he’s going to take while he’s in prison to prepare for success?

When you weigh both of those, the defense attorney saying something or the defendant, in a first person narrative, showing how much he has introspected, would one or the other have more influence on you?

Mark Bennett: Absolutely Michael. It’s fine for the defense lawyer to give a short overview of what he thinks his client has learned and how he thinks his client is making changes and will continue to make changes and why his client is motivated to do so. That’s fine as an introduction but, the nuts and bolts of it, you need to hear from the offender, in my view, so that we can gauge how thoughtful they are, is this really sincere, are they being credible, is it realist?

If they say when they get out they want to be an astronaut or they want to be a federal judge, probably not very realistic. If they say something reasonable and they have definite plan and it’s thoughtful, that can be very powerful in an allocution and go a long way towards mitigating a sentence.

Michael Santos Interviews Judge Mark Bennett

Michael Santos Interviews Judge Mark Bennett

Michael Santos: If the individual really wanted to take advantage of that wisdom that you just provided, would it behoove them to begin crafting that narrative and writing that narrative even before he has the pre-sentence investigation report so he can communicate that to probation officer, thereby giving the judiciary, an opportunity to review even before allocution and maybe test the theories that the defendant is offering at the pre-sentence investigation report?

Mark Bennett: Well, that’s one of the best ideas I’ve ever heard and the reason why I haven’t thought of it is, I’m not sure I’ve ever seen it but I would be super impressed in reading a pre-sentence report, if I knew that the defendant had thought about that even at the time the pre-sentence report was being prepared, rather than waiting till the night before sentencing, to come up with it. That would be astoundingly impressive to me, to have a defendant that thoughtful and a defense lawyer that thoughtful that they would include that information in the pre-sentence report.

The pre-sentence report, because you read that, it’s primacy and recency, because you read that before you go into sentencing. I think most judges read any complicated pre-sentence report at least a couple of times. I know I do. That helps shape your frame of reference and your thinking going into the sentence. Having something positive like that, as long as it’s believable and credible, would really be helpful and put you in a better frame of mind towards that individual and, if you were skeptical of it, you would have an opportunity then to think about it, what type of questions you might want to ask defense consult or the defendant if they were willing to answer the questions, to make sure that the offender is being candid and credible in their comments.

Michael Santos: I appreciate you for sharing that wisdom because, a lot of times, defendants who are trying to prepare, express some reluctance in writing out their life story because they’re afraid that they’re going to go against something that the defense attorney’s advising them. I always try to advise them, this is a very important time for you to advocate on your own behalf. As long as you are sincere, as long as you help the judge understand the motivations that led you into that situation, you can start to bring in the common humanity where the court and not only the court but all stakeholders, including the probation office, including the bureau of prisons, to start seeing this this individual as a flawed person as we all are but somebody who wants to try to make things better and to the extent that the defendant makes that investment of time and energy to help the judge see him, I think I heard from you that he advances his possibilities for the best possible outcome.

Mark Bennett: Absolutely.

Michael Santos: Go ahead Judge.

Mark Bennett: I was just going to say that, probably one of the main reasons I do downward variances are, most defendants that I see, lack significant parental guidance. Some started using drugs when they were eight or nine or 10 or 11 or 12 years old. Sometimes it was the parents who got them using drugs. The parents were not very good role models. All of that, to me, is very important because it puts in context, why they’re in front of me.

It’s never surprising, when you read a background like that. What would be surprising about the fact that somebody started using drugs and selling drugs and winds up in front of a federal district court judge? Nothing. I find lack of parental guidance and a very hard upbringing, almost always to me a mitigating circumstance that justifies a downward variance.

Now, it doesn’t always because every case is very case specific. Even after 4,000 cases, I don’t generalize about cases at all. I look at the facts of every case. Every case is different and make a judgment. It’s very important to put the life of the individual in context because that can often explain. It doesn’t justify, but it does explain. In my judgment, often mitigates what the punishment should be.

Michael Santos: Judge, how about psychological evaluations? Sometimes, a defendant may have some mental instability or issues that influence his life. Do you find it persuasive at all, to have a professional guidance from psychologists or psychiatrists who have treated or mental health professionals? Do those types of reports have an influence or a bearing on decisions in sentencing as well?

Mark Bennett: Yes. Depending upon the case, they may have more or less influence. I find, well done psychological records and reports and medical history and reports, very helpful. There are some areas where psychological or psychiatric evaluation is really critical. For example, in the child porn sex offender cases, which ever federal judge is seeing more and more of, because the statute is so broad and the punishment range is so broad and so incredibly high, one of the key issues for most judges is; is this somebody who’s just viewing it on the internet and on their computer and sharing files, or is this somebody who’s likely to go out and do hands on, physical touching and sex abuse of minor children?

Nobody can predict that with certainty but I find it very helpful to have an excellent psychiatric evaluation. There are some psychological tests that help psychologists and psychiatrists, predict the likelihood of people engaging in hands on sex abuse with minors. That’s an area that I find it very helpful. I’ve had some reports done that say there’s a medium or moderate high chance of re-offending and physical contact with minors and then I have reports that say there’s very little likelihood.

Depending upon who the psychiatrist or psychologist is and what their credentials are and how much experience they have in the area, I find their information extremely helpful.

Michael Santos: Expert testimony that can explain the defendant’s behavior rather help the judge at least consider factors do have a role, at least in your courtroom.

Mark Bennett: Absolutely. While I read the expert witness reports very carefully, I like it better when the expert is called as a live witness, even if it’s only for the purpose of adopting the report and then giving the government the opportunity to cross examine the expert and then giving me an opportunity to ask questions that I might have of the expert and I always do have questions. I’m likely to give more weight to a report when the government’s had an opportunity to cross examine the expert, usually they only make a couple of points.

Usually it doesn’t have much baring on my judgment. Then, if the expert answers my questions to my satisfaction, I’m willing to give the report considerable weight because they’ve answered any reservations or qualifications that I have about the expert’s opinions. I find it extremely helpful.

Michael Santos: We’ve spoken about experts. How about the defendant’s character reference letters, getting letters from other people? What level of influence do those character reference have at the sentencing hearing?

Mark Bennett: I estimated not too long ago, just a rough calculation, that I’ve read somewhere between 30,000 and 40,000 character letters on behalf of defendants because, it’s not unusual to have seven, eight or nine in a case. I had a case last year where I had 93. That was a little bit too much. They all looked the same because I found out, after questioning the defense lawyers, and they were very honest in responding, that the wife of the defendant had sent out a form letter to all these people and it had some phrases in it and the letters just adopted the phrases. I didn’t give much weight to those letters.

Michael Santos Interviews Judge Mark Bennett

Michael Santos Interviews Judge Mark Bennett

I give a lot of weight to letters if it’s somebody the person actually knows and how long and how well they know them. I’d much rather have a letter from a street sweeper or a janitor, that has known the individual for maybe more than 10 years or maybe most of their life, than a letter from a state senator or a United States senator that’s clearly writing it as a favor to the family and may or may not even know the individual.

The status of the person writing the letter, has very little baring on me but it’s what they have to say and how they came about acquiring the information that is helpful to me. I get offended when they tell me what the sentence should be. A lot of times, please give the person probation. Well, maybe they’re an armed career criminal and they’re looking at a potential life sentence, gee whiz, they’re not going to get probation.

Maybe I’m just idiosyncratic but I bristle when people tell me what I should do. Tell me how you know the person, what their characteristics are and then let me decide how that fits into an appropriate sentence. Your job isn’t to tell a job what an appropriate sentence should be. Give me the facts of how you know the person, how you know them, what their good qualities are, what you think their prospects are for rehabilitation, anything that you think would be helpful but stay away from actually telling me what a sentence ought to be because, you’re not in a position to know that. That’s how I look at it and I think most of my colleagues look at it in a very similar fashion.

Michael Santos: Judge, I only have two more questions regarding preparing for the sentence. One of them has to do with financial loss. If an individual knows that his behavior or his activities have resulted in financial loss to either victims or institutions, can he influence his perception of him if he starts making measurable efforts towards restitution, even before the sentence was imposed? For example, perhaps sending, $50 a week or $50 a month or $100 a month, even if it’s talking about millions of dollars in loss, if he starts that effort even before sentencing, maybe even as soon as the pre-sentence investigation report, would that effort, if it’s measurable and meaningful, have an influence on your perception of the individual?

Mark Bennett: Absolutely. That’s much more impressive than seeing in the allocution, “I hope when I get out, to start making restitution payments.” You’ve started making restitution payments and you probably don’t have a lot of money. If you’ve hired a defense lawyer, they have most of your remaining funds, I’m being facetious there but no, the fact that you’ve been willing, even if it’s a small amount, if that’s all you can afford.

You know what? I’ve never had a defendant tell me, in sentencing, that I’m looking forward to working in Unicorps or prison industries, so I can make a little bit of money and help start making restitution payments while I’m still in prison. I’ve never had anybody say that. Would I be impressed by somebody who said that rather than wanting to spend it on buying candy bars in the commissary? You bet I’d be impressed by it if I thought it was sincere.

Michael Santos: The last question on sentencing I have has to do with the number of people that a defendant may bring into the courtroom, at sentencing, to show support. Does that in any way, if anybody’s family members or community members, into the courtroom at sentencing, does that speak anything to you at the sentencing hearing?

Mark Bennett: Here’s how I look at it; I think it operates more on a subconscious level but it can show that there’s tremendous family and community support and that can be a factor in the likelihood of somebody, in terms of rehabilitation. On the other hand, often times, no one comes on behalf of the defendant. I try not to let that influence me. Maybe the defendant is too embarrassed to have his family there, they just don’t want them there, they don’t want to put their children through the pain so it’s just a case by case basis.

You like to see family support. If there are good letters, you know there’s family support and maybe logistical problems, they have to come from too far away but it’s usually impressive to have people in the courtroom, supporting the individual and sometimes, I’ve had them raise their hand like it’s a classroom and want me to call on them and usually, I’ll say, “Come to the podium. Tell us who you are.” I’ll ask the parties if they have an objection. Usually they don’t. I’ll actually take a kind of allocution from a non-defendant because they came a long ways and they have something to say.

I’d been impressed by employers that come. Where the defendant has made full disclosure to the employer. They know that there’s going to be a 10 year mandatory minimum, for example, but they want to come and assure me that even when the person gets out, there’ll be a job there waiting for them because they think so highly of them. Having former employers there, current employers, family members show us support.

I think the literature is pretty clear that, the more support somebody has, the greater likelihood there is that they’ll be rehabilitated. I think that can be helpful. On the other hand, in white collar cases when you have 100 people in the courtroom, supporting a white collar defendant and they’ve written letters saying they didn’t think what he did was really that bad and he’s really a great guy and all, it can backfire a little bit too. I think the defendant and the lawyer should use some judgment on how many people should be there.

Michael Santos: Judge, I’ve read your really impressive testimony and work about going into prisons to visit people, who you sentenced before. Can you tell us a little bit about what you’ve learned from visiting people who’ve actually been brought into the bureau of prisons and you’ve went to see them years or perhaps in some cases, decades after you imposed a sentence. What has made the most impression on you from visiting those people?

Mark Bennett: Well, it reinforces my impression at sentencing that, most of the people I sentence are good people who’ve made bad decisions, usually because of the influence of drugs or alcohol or both. I come away from visiting inmates I’ve sentenced with a lot of mixed emotions. Usually deep regret for the fact that I had to give such a long sentence if there was a mandatory minimum but with great optimism that most of them are making the most of their experience. They’ve got a positive attitude.

They’re working hard to stay in touch with their family. They’re seeking skills to help when they get out. I leave inspired by the people I meet while in prison. They’re often very different than the people I sentence. They’ve had a chance to think about things and they’ve looked at their life and they realize this is no way to live and they’re on the road to making major positive changes. To me, that’s both encouraging and inspiring.

I would like to see more of my colleagues visit inmates that they’ve sentenced. I think they would realize that so many of the lengthy sentences we give out, aren’t necessary to get people on the road to rehabilitation, particularly when we have discretion not to give an extremely long sentence.

Michael Santos: It happens in rare cases but perhaps one out of ten, or maybe it’s one our of a hundred, but sometimes an individual has an opportunity to be re-sentenced again, whether it’s a re-sentencing on direct appeal or a 2255 and that person goes before court. One of the things that I’m hoping you will help me communicate to the people I mentor, communicate with in prison is that the decisions an individual makes in prison, his adjustment in prison, can have a massive influence whenever he gets out.

If that individual has the gift of coming before the court again, to be reevaluated, reassessed, tell us a little bit about how your perception of how his adjustment, what type of investment he’s made in educating himself and contributing to society and building support networks and showing a record of measurable steps that he has taken to emerge as a law abiding citizen, would that have an influence on you, in your courtroom, if that person had an opportunity to come before you again for a re-sentencing?

Mark Bennett: Yeah. It absolutely does. That was a classic case of mine that went to the United States Supreme Court. United States versus Pepper. Pepper got out and I got reversed because I gave him too lenient a sentence but he had done some great things, both in prison and when he got out and the issue was, could I consider post sentencing rehabilitation. I said I could. The aid circuit twice, said I couldn’t. The supreme court ultimately said, “Yes you can.” I think that’s very, very important.

For the last couple months, I’ve been doing lots of commutation and pardon letters on behalf of individuals I’ve sentenced and so I go back and read the sentencing transcript, read the pre-sentence report. The number one thing for me is their current record. What have they done? Have they have a clean discipline record or close to a clean discipline record? What steps are they taking to become a better person? What courses are they taking? What classes are they taking? Are they helping other inmates? What are they doing with their time?

It’s been very rewarding, the last couple months, when the lists come out, of who President Obama has granted commutations and pardons to. I’ve had a number of people on those lists that I have written letters. The reason I wrote the letter was, I’ve been so impressed by what they’ve been doing in prison and that didn’t just impress me, it obviously impressed the pardon attorney enough to make a recommendation to the president to grant a commutation or a pardon.

There’s always hope. Under this president, we’ve had more people with life sentences given commutations and pardons than in the history of sentencing. Even if you get a still hope and there is reason to try and make the prison experience the best experience you can to convince not only a judge but your family members that you’re making the most of it and you want to go down a different path when you get out, which is exactly what you did.

That’s your story to a T. You are the role model, the poster child for post-offense rehabilitation in prison and out of prison. If more offenders in prison, could model what you did, society would be so greatly enhanced.

Michael Santos: Well, although a lot of the people may never get an opportunity to have their sentence revisited or a commutation, virtually everybody is coming out of federal prison now, will have a period of time of supervised release and many of them will someday make a motion for requesting early termination. I think what you have just given us, is a road map for those people, helping them understand that ever decision they make while incarcerated, every decision they make to demonstrate they want to reconcile with society, every decision they make that they want to build a strong support network of law abiding citizens, that can have an influence on their life in prison and beyond.

I’m just so grateful to you, Judge Bennett, for really helping to communicate that message. I will be using this episode in prisons across the United States and I think, just the virtue of you, talking to me, a mandated 26 years in prison and still, on special parol, it will help inspire people and it will help people see that, regardless of what’s going on in the world, who’s in the white house, what’s going on in congress, an individual can always work toward becoming something better.

I’m going to leave the last word with you Judge because I know your time is valuable and you’ve given us quite a bit of time already. If you might have anything you want to share with our audience.

Mark Bennett: Well, everybody’s time is valuable, particularly if you make the most of the time that you have. I think that’s a great point, Michael. I just want to say that the feeling is mutual. You have done so much and worked so hard, to make such incredibly positive changes in your life, that I’m so proud to know you. I’m so proud to consider you a friend and you know what? I’d be absolutely thrilled if you were my next door neighbor because you’ve not only paid your debt to society, you’ve repaid it and you are repaying it over and over again.

That’s really more than we could ever ask of anybody. You’re just a great role model and I think because you have walked the walk and you have had the experience and you served such an incredibly lengthy period in prison and you did so much to really rehabilitate yourself and the networks that you’ve created for yourself, it’s the perfect example of the kind of path that can make a huge difference in somebody’s life. Thank you very much for the work that you’re doing.

Michael Santos: Thank you very much Judge. I’m very privileged to have this friendship as well and I will continue working hard to prove worthy of this trust that you’ve given to me. I really appreciate it.

Mark Bennett: Thank you so much Michael. Bye now.

Michael Santos: I really appreciate it. Okay Judge. Thank you again. I send you a link when I get this thing loaded up.

Mark Bennett: Okay. Thanks Michael. Great to see you.

Michael Santos: Thank you. Buh-bye.