Your federal sentencing mitigation letter is required reading for the judge. That is not the question. The question is what he does with it after he reads it. Most letters get one slow read and then get set aside (at least 10 judges have told me that). The letters that influence a sentence are the ones a judge can verify, weigh against the presentence report, and use to justify a sentence below the guidelines on the record. Apology and promises do not give him anything to work with. A documented record of action since indictment does.
I know because my federal sentencing mitigation letter in 2008 had none of that. In short, my letter sucked.
I wrote that I was sorry, that I would make amends. I made promises about my future (hello vague!). I had nothing to back any of it up. No documented work. No record between the day I was charged and the day I stood in front of Judge Stephen Wilson. The letter sat in his binder next to a presentence report that described, in specific detail, what I had done at Bear Stearns and Merrill Lynch. The PSR had facts. My letter had feelings. There was no contest. Again, it sucked!
I went to Taft Federal Prison Camp. April 2008. Eighteen months. I sat there and thought about that letter for a long time.
What does a federal sentencing mitigation letter actually do at sentencing?
Niccolò Machiavelli wrote in The Prince that men judge more by the eyes than by the hands. Everyone sees what you appear to be. Few experience what you really are. He was writing about rulers, but the principle holds in any room where one person is deciding another person’s sentence from a letter.
A judge cannot experience your remorse. He has never met you. He can only see/study what you put in front of him. If what you put in front of him is “I am sorry, I will be a better man,” he reads it, sets it down, and turns to the presentence report, which is full of facts. Your letter loses every time on that page count. You are asking him to take feelings on faith while the government is handing him a record that shows you’re scum, a criminal.
If you put a documented record in front of him, you have given him something to use. You have given him reasons to vary downward. Judges do not vary downward on faith. They vary downward on something they can defend if the case gets reviewed.
Why do apologies and promises fail?
Because the judge has read thousands of them. Apology language is the cheapest currency in a federal courtroom. Every defendant is sorry by the time of sentencing. Every defendant promises to be better. The judge knows this. He has watched defendants make those promises and then violate supervised release within six months. He has no way to score your apology against anyone else’s. It is a feeling he cannot verify.
Promises about the future are worse. A promise is something you have not done yet. The judge is being asked to credit you for work you have not started. He is the wrong person to be telling about your future. The right person to tell is yourself, by doing the work, while you still have time before sentencing.
This was the failure of my letter. It was honest. I was sorry. I did intend to come home and live differently. None of that mattered, because I had not done anything yet. The letter described an internal state. The judge needed an external record.
What goes in a federal sentencing mitigation letter that actually moves a judge?
A federal sentencing mitigation letter that moves a judge is a list of things you did, with dates, that anyone can verify.
It is a class you completed at a community college, with a transcript attached.
It is a book you read and wrote a five-page report on, with the report submitted as an exhibit.
It is volunteer hours logged at a nonprofit, with a letter from the executive director on the nonprofit’s letterhead, naming you, naming the dates, naming what you did.
It is a restitution payment made before sentencing, with a receipt.
It is a journal you kept from the day you were charged, and the entries that prove you were thinking about the harm and not just the consequences to yourself.
It is a podcast or blog you started, with a public timestamp on every post, where you wrote honestly about what you had done. Not in a self-pitying way. In a useful way, where someone else facing the same situation could learn from it.
A judge looks at that and sees something the government does not have. The government has the indictment, the plea, and the PSR. Those describe who you were the day you got caught. The documented record describes who you became after. The judge has been waiting his whole career for that gap to be filled with something real.
This is the work I did not do in 2008. It is the work my clients now do, often for a year or more before sentencing, and it is the reason their records hit different than mine did.
What did Judge Wilson actually have in front of him at my sentencing?
A presentence report with the trades I had executed, the lies I had told, the dollar amounts, the dates.
A boilerplate letter from me saying I was sorry and promising to be better.
That was it. That was what I had given him to work with. He had no record of action between the indictment and the sentencing. There was nothing to weigh against the government’s version. He sentenced me inside the guidelines and there was no defensible reason for him to do anything else, because I had not given him one.
I do not blame him. I would have done the same thing in his chair.
How do you build the record before your federal sentencing date?
Start today. Pick something specific and start it today. Not next week, not after the next status hearing. Today.
Pick a problem in your community that has something to do with what you were charged with. If your case involved health care, find a community clinic that needs volunteer help. If your case involved investors, find a financial literacy program at a high school or a workforce development nonprofit. If your case involved the government, find a civic education program. The connection between your offense and your service should be visible on its face.
Show up consistently. Document each day. Keep a record. Have someone in authority at the organization write a letter on letterhead naming what you did and when you did it.
Write something publicly, weekly, that nobody is paying you to write. About what you have learned. About what you got wrong. About what you owe.
Make a restitution payment before you are required to. Even a small one. Get the receipt.
By the time your sentencing date arrives, you should have a folder. The folder should be thick. The folder should be full of assets that no defendant in front of you that morning will have. That folder is what the judge uses. Not your apology.
On October 12, 2008, six months into my sentence, I started writing a daily blog from Taft. That was the day I started building a record. I have not stopped since. I built it years too late to help my own sentence, but I built it in time to help the people who come to me now. That is the lesson I came home with. The record is what stands out. The record is what a judge can use. Everything else is paper a judge is required to read and is not required to credit.
Frequently Asked Questions
Does a federal judge actually read every letter?
Yes. The judge is required to consider mitigation submitted on the defendant’s behalf. The variable is not whether he reads it. The variable is what he does with it. Letters that contain only apology and promises get read and set aside. Letters with a documented record of action since the indictment get cited on the record when a judge varies downward.
What goes in a sentencing mitigation letter versus a sentencing memorandum?
The sentencing memorandum is filed by the lawyer. It is the legal argument: the guidelines calculation, the 3553(a) factors, case law, the recommended sentence. The defendant’s letter is separate. It is the defendant’s own words about what he did, what he learned, and what he has built since the indictment. The two documents do different work and should not be confused. This blog is about the defendant’s letter. For the broader strategy, see the sentencing mitigation plan.
How long should the defendant’s letter be?
Eight to ten pages, 3,000 plus words.
What if I have not done anything yet for my federal sentencing mitigation letter?
Start today. Most defendants have between six months and two years between charge and sentencing. That is enough time to build a record if you start now. The defendant who starts the day he is charged is in a different position at sentencing than the defendant who starts a week before.
How is this different from a character reference letter?
A defendant writes his own mitigation letter. A character reference letter is written by someone else about the defendant. Both go to the judge. Both should be specific. The defendant’s letter is the one place in the entire sentencing record where the judge hears directly from the person being sentenced, in the person’s own words, about the work he has done since the day he was charged.
