Lesson Three: Sentence Mitigation and Hearing
At White Collar Advice, 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 White Collar Advice, 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:
• 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.
Because the sentencing hearing will have an enormous influence on the life of the defendant and the defendant’s family, White Collar Advice 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 White Collar Advice consultants 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 first step White Collar Advice consultants 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 White Collar Advice 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.
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 White Collar Advice consultant 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.
White Collar Advice consultants may start the interview with questions such as:
• 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 those who know you best define the values that guide your decisions?
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.
A White Collar Advice consultant 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 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.
After interviewing the defendant, White Collar Advice consultants 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 White Collar Advice 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.
White Collar Advice consultants 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:
• All family members
• Teachers from childhood
• Fellow worshipers
• Volunteer recipients
• Business associates
White Collar Advice consultants 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:
• As many details as possible that show:
o How the relationship began.
o Positive influence defendant has had on the character witness’ life.
o Contributions the defendant has made to build a better community.
o Level of support the witness pledges toward the defendant.
o 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 White Collar Advice 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 White Collar Advice, 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 White Collar Advice consultants 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.
After concluding all of the interviews that time and resources will allow, a White Collar Advice would take the next step toward creating the effective sentence-mitigation strategy. That step begins with collecting records that would corroborate or support all that our narrative shows. Essentially, an effective White Collar Advice 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 White Collar Advice consultant will begin to compile his narrative.
The defendant who chooses to compile his own sentence-mitigation strategy may choose to follow this same approach. White Collar Advice 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.”
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 White Collar Advice consultant 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. White Collar Advice consultants 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.
At White Collar Advice, 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:
• Mental state of mind
• Emotional condition
• Substance abuse
• Physical condition
• 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, White Collar Advice is adamant about working with clients to prepare the most effective sentencing-mitigation strategy as possible. We encourage individuals who cannot work with White Collar Advice 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.
As a final word on the sentencing-mitigation package, White Collar Advice 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.
Federal judges rarely impose alternative sentences, but defendants who make the most compelling case stand the best chance of minimizing time in prison. White Collar Advice 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.
At White Collar Advice, we work with our clients to make effective oral presentations at the sentencing hearing. Defendants who do not work with White Collar Advice 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.
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 White Collar Advice, 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.
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.
• 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?