A Journalist Asked If Sentencing Advocacy Is Manipulation

A journalist has been interviewing me. She is skeptical of the work we do for defendants. She is convinced it is manipulation. I like her, and we are actually becoming friends, but I find some of her questions worth answering in public. Here is question 11.

Before I answered, I looked the word up.

Manipulate: to control or influence, cleverly, unfairly, or unscrupulously.

Okay. Now that we have the definition, let's go through it.

Of course we are trying to influence a judge

Let's not live in fantasy land. This is not entertainment.

Of course we are trying to influence a judge. That is what sentencing advocacy is. We are trying to get a judge, a cynical dude or dudette, to see a person as more than the worst decision they ever made. If someone pled guilty or was convicted, we are asking that judge to take the totality of a life into consideration.

I do not hear manipulation in that. If you do, tell me.

Everyone in that courtroom is trying to influence the judge

Start with the government. Their job is to persuade the judge. Nobody calls that manipulation.

If you want to talk about incentives, the government has an incentive to convict, to send people to prison, and to advance a career, all under the guise of justice. I am not going to tell you what to call that, because I know my readers are smart and can deduce it. Fine, I will tell you anyway. If there is manipulation in a federal case, I believe a good amount of it comes from that side of the room.

The defense attorney is going to try to influence the judge too. That is what they are paid a lot of dineros to do, and I hope they do it well.

Victims submit statements, and they should. I have watched this for 17 years. I identify with victims. They call me. I speak with them. I do not believe in victim shaming. If they were hurt, they should be paid, and the collateral consequences for a victim are real.

In some instances those statements get overdone. Some say things that are not true. I know people who were not victims at all who claimed to be victims. That happened in my case.

A judge knows this person is a victim, and you have to be careful about what you can and cannot say to a victim. So yes, there is room for manipulation there.

Character reference letters? Could someone write a line meant to convince a judge of something that is not true? I suppose so.

Now let's talk about the defendant

That is the one I had not gotten to yet.

The only way a defendant gets a shorter sentence is by presenting something that is true.

Could a person try to lie their way to a better outcome, say I did it but I did not really, and cajole? Sure. But that is not manipulation. That is lying.

Judges are smart. They assess all of the information put in front of them, and they can confirm whether a person actually did what they said they did.

That is why I do not believe it is manipulation. Saying you have changed could be a lie. Saying how you changed can be checked.

How are you going to fix the window

A federal judge said it on a video we recorded: if you break my window, do not tell me sorry. How are you going to fix the window?

So how is it manipulation to start fixing the window?

• Setting money aside to pay restitution
• Accepting responsibility for specific conduct, not the phrase
• Cooperating to help others face justice, which of course can help you too
• Getting a job
• Developing an income
• Paying taxes, which shows you can earn a living as a law-abiding citizen

Those are mitigating facts. A judge can verify every one of them.

The background section is not a trick either

Federal judges are required to consider the history and characteristics of the defendant. That comes from 18 U.S.C. 3553(a), the statute that governs how a federal sentence gets imposed.

History and characteristics covers the parts of a life a court should hear about. Alcohol. Gambling. Substance abuse. Trauma.

How is that manipulation? Those are the facts, people. What weight any of it carries depends on the case and on the judge, so ask your lawyer what belongs in front of yours.

What does not work

Any person can sit down at a probation interview or stand up at sentencing and say the lines. I take full responsibility. I have learned my lesson. I am not the same man I was. You will never see me in this courtroom again.

They can make a real nice speech, and it will probably be discounted. You are standing in front of government stakeholders who are cynical and smart and who live this 24 hours a day. They know when someone is telling the truth.

That is not manipulation either. That is a speech that does not work.

What works

I do not believe you can manipulate your way to a successful outcome at sentencing. I believe a defendant, through their own effort, and the earlier the better, can build a verifiable record that shows why they are a candidate for leniency.

I am convinced of it. I do not promise outcomes, because nobody can. The record is the part you control.

Build, build, build.

Her next question is why a wealthy defendant who can afford to hire White Collar Advice should get an advantage. I will answer that one next.

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