Federal Judge Bough Discusses How To Prepare For Sentencing

I am pleased to share the transcript of the sentencing video my business partner, Michael Santos, filmed with Federal Judge Stephen Bough. If you truly want to prepare for sentencing you will watch this video, and implement all you learn. If you are need of help with your narrative, grab our free sentencing report or schedule a call with me. I hope you enjoy the video. JP

“Michael Santos: I am Michael Santos with prisonprofessors.com and today I have the distinct privilege and honor of introducing you to Judge Stephen Bough from the Western District of Missouri. I met Judge Bough through my friend and partner, Shon Hopwood and I asked him if he would come on our program to speak a little bit about sentencing and what steps and individual can take to influence or have a positive influence on the jury.

Judge Bough, thank you so much for taking the time out of your busy schedule to spend some time with us and I’d just like to ask you in the beginning, start with the first question and that is, what information do you consider prior to sentencing, prior to that all important date for a defendant?

Stephen Bough: Well, first let me tell you thanks for having me on your program and I’ve enjoyed talking about this to other organizations, bar associations, so I’m glad to talk about it with you.

I’m a little bit unique that I have both sides file sentencing memorandum and make a mandate that they each address the 3553 factors. I think having both sides know that I’m attuned to that and want advocacy on that is important.

Other things that I review or offer could be letters, it could be a thumb drive of a video, or something that’s on that point. I think what I’ve told lots of lawyers is, I travel around the entire western district of Missouri, sometimes I’ll do eight sentencing in one day and just sit in and get in the car at 5:00 and drive to somewhere else to do more sentencings. To keep it on schedule, I need to know ahead of time what I’m dealing with and I can watch a video that’s been produced or look at a PowerPoint beforehand. And I promise I do it, that it’s not just a thumb drive sitting out there. I can do that and stay on schedule.

Michael Santos: You mentioned the factors 3553. For those of our audience that aren’t familiar with those factors, can you elaborate a little bit on what they mean?

Stephen Bough: Yeah, so, 18 U.S.C § 3553 is a statute that governs sentencing. What ever federal judge has to do is one, properly calculate the sentencing guideline. And then, two, apply the 3553 factors. Clearly the sentencing guidelines are generic. They have nothing to do with the human that’s in front of you. The 3553 factors say, now look at this person like a human, not like a grid, like on the back page of the sentencing guidelines. And so the 3553 factors, honestly, there’s something for everybody. If a judge wants to sentence somebody harshly, there’s a factor for that. If a judge wants to sentence someone leniently, there’s something for that, too. So we look at the history and characteristics of the defendant. You look at what happened in this particular crime. What’s a just punishment? How do you deter? How do you rehab? It’s the anthesis, it’s the opposite of the sentencing guidelines. Now I’ve got to look at you and your crime and your background and what do you need to end up being a successful citizen of our country.

Michael Santos: And although a defendant can’t change the past, the bad decisions that he may have had that put him in the cross hairs of a prosecutor and in the department of justice, what steps have you seen defendants make that have made a favorable impression upon you when you’re considering those factors?

Stephen Bough: Takes me back to when a former US Attorney, who’s now a district judge told me. There’s really only two kind of crimes. There’s a crime that I’m mad at you. And then there’s a crime that I’m scared of you. And so, I’m not going to talk about, hopefully put it in the category of I’m mad at you. You’ve used drugs. You’ve run from a cop. You had a gun. As opposed to I’m scared of you. You produced child pornography. I think when you look at that, if you’re a federal judge and you’re sentencing someone, you want to know that somebody’s genuinely remorseful for what they’ve done. And so, I’ve had times where, well, Judge, I want you to pass along my apologies to somebody. I’m like, “I’m not in the business of passing along apologies. You could have done that before. You’ve already pled guilty. You had 90 days. You could have reached out and had distorted justice all on your own. You don’t need me to do. You don’t need me to order it.”

There are folks who know I’m in charge of my reentry program. And so, we have a relapse prevention program there in the reentry program that spells out things that say, “Here’s how I got into this trouble. Here’s the factors that lead me to use drugs or lead me to make these bad decisions. Here’s the people.” And I’ve had people fill out the relapse prevention plan because they have thought about how they got there, the things in their life that got them there. And then things that they’re going to do to improve themselves regardless what my sentence is. Coming in, being genuinely remorseful and not just saying, “I’m sorry” to everybody in the courtroom, but knowing who the victims are and trying to heal that regardless of my sentence. And truly just self-evaluate themselves and figure out how they got in this spot. And start making conscious efforts to improve.

Michael Santos: When you spoke about remorse quite a bit there and I know a lot of times defendant attorneys will articulate the remorsefulness of the client, what type of weight do you give a defense attorney’s statement about the defendant’s remorse?

Stephen Bough: I don’t want to say zero, but I’m up there at about 1% and 2%. Most of the time, I’m paying the defense lawyer, whether they’re a public defender or CJA attorney. I expect them to do that. What is much more meaningful to me, and I believe most of the other judges that I know, is if you believe that that defendant is truly remorseful and given some thought about it. And if one of those things, just like if you kid throws a baseball through your window and you say, “I’m sorry”, that’s one thing. If the kid throws the window through the window and is busy cleaning it up and doesn’t try to blame it on Bobby next door as a contributing somebody, but I’m fixing it and I really know what I’ve done here. I’ve thought about it and I can see how it’s affecting you and others, that’s really meaningful. And you can usually see it. Not that federal judges have some special power to tell if someone is saying BS or not, but there’s a speech that I think every public defender gives every defendant, and if you repeat that speech, that’s not real meaningful.

But, you can tell when somebody’s given some thought that, “Hey, I realize that I’ve hurt somebody else. And that somebody else may be my kid, may be my wife, may be somebody else. Here’s how I understand that I have damaged somebody else in this process.” And even if they’re just selling some small quantity of drugs to feed their own habit, they’ve damaged other members of society and caused hurt to someone else’s family. So recognizing your actions go beyond yourself. And you saying you’re sorry is a lot more meaningful than the public defender or CJA attorney saying you’re sorry.

Michael Santos: And in your experience, how frequently do you see defendants really invest the time and the energy to communicate that remorse to you? Is that something that you see a lot of or is that something you would like to see more of?

Stephen Bough: I’d like to see more of it. To answer your initial question, I mean, I can probably count on one hand … I’ve been on the bench about three years. I can count on one hand where I was genuinely moved by somebody’s apology. They really recognized it. And not just a check mark on the box, I’m supposed to say I’m sorry. I’m supposed to say this, and I’m supposed to say this. But a true introspection and thinking about how they got there, I think is pretty valuable. It’s valuable for all of us, right? I mean, it’s what they taught you in Sunday School, thinking about how did my actions affect others. And not just say I’m sorry, but to go about trying to remedy that. A lot of times we talk about in some cases, in some jurisdictions, they have restorative justice type programs. And try to put people together to heal that divide. You don’t need an order to do that. You just need a pen and a piece of paper and for it to be genuine. I think most humans have the capacity to forgive and to move on.

Michael Santos: Sometimes defendants… Talk to us about saying that their defense attorneys do not want them to talk in court. If that’s the case, would you have any guidance for a defendant who defense attorney is saying, I don’t want you to prepare this lengthy statement of remorse for appeal reasons or for something else. Because sometimes the defendant really wants to express that but on advice of counsel, he doesn’t do it. Do you have any guidance for somebody who faces that dilemma?

Stephen Bough: Yeah, I think first, one, really ask why. Try to figure out what this is. Sometimes I wouldn’t want a defendant talking either. It has nothing to do with an appeal. It’s because that person isn’t remorseful and hasn’t given some thought and feels like they’re the victim and hasn’t owned up to their situation. Well, that could hurt you. That could really hurt a defendant to go in. So it may be the criminal defense lawyer saying, “You’re not in a state of mind that will be advantageous in your sentencing.” If it’s for an appeal purpose, that’s something, a whole other avenue. You don’t want to mess up an appeal. But at least in my district, we’re close to 95% guilty plea rates. So we have very few trials. That doesn’t come up a whole lot. So that’s an outlier. I really would want to ask, “Why? I’d like to this. I’ve heard it can be effective in my case. Is there something that I’m doing that makes it not advantageous for me to stand up?”

Michael Santos: Maybe defendants also express a great fear of speaking in front a courtroom. Does it have the same movement for you if they take the time to write out their narrative and their introspection and what they’ve learned from this process or do you only value the allocution statement at sentencing?

Stephen Bough: I’ve seen it both ways. I think anybody who stood in front of a federal judge to be sentenced should be nervous, right? I mean, that’s the proper emotion. So if you’re not nervous, there’s something wrong. So being nervous and writing it out and reading it can be just as powerful. And I’ve seen that several times. I had a case the other day where the defendant couldn’t read it. She started breaking down. I’m like, “Would you like me to read it?” “Yes.” “Would you like me to read it out loud?” “Yes.” So I read it out loud. I know there’s some judges that can’t tolerate a tear in the courtroom. I’m not happen to be one of them. It’s not that those are bad judges, but I understand that it’s a very emotional process and so, if you need to write it out, great. If you can’t write it out, that’s great.

I even had a woman who, she was terrified and nobody… government, prosecutor, probation officer said she could ever really talk in public. And so what they did was part of her allocution was trying to show, “Here’s where I’ve come from. Here’s the house I was raised in. This is the miserable place that I still reside. Here are these issues and here’s my kids.” And they just had her narrate it at the attorney’s office. So that PowerPoint that they sent me on a thumb drive beforehand allowed her that opportunity to talk because she couldn’t say more than yes or no to the US Attorney, the probation office, or her defense lawyer most times. So finding a way to address that, whether it’s in a written form or standing up and speaking. You know, this is not the Presidential State of the Union. You don’t have to act like it’s memorized. I think more important is that it’s heartfelt.

Michael Santos: Have you… That sounds to me, correct me if I’m wrong, that you received a video-type of recording. Is that an appropriate delivery method, then, for an allocution statement, is through video?

Stephen Bough: I think it can be. I think it would be the outlier, a really unique situation. This particular defendant had some issues that she was never really able to speak out and that kind of put her in… The argument was that put her in the situation she was in to be manipulated for the crime that was there. So I think it can be. I think it can be part of an allocution. I don’t think anyone would want to turn this into a 60 Minutes program, but for individual … Every case should be individualized. And so, in an individual case, if there’s something somebody wants to show me and the quickest, most effective way is to have a five minute video with it narrated by different people to explain the situation and they send it to me beforehand … I got a thumb drive on my desk right now for a sentencing tomorrow that I’m going to go back and watch and look at the things they want me to. Because that’s the most effective way for the defendant to tell their story. Now obviously, the US Attorney is going to get a copy of it, too. But, it’s … I’m willing to look at something to allow someone to argue their issue.

Michael Santos: Can you describe a situation where you went into a hearing, a sentencing hearing, with one idea of what you were going to impose and received an allocution at the hearing that caused you to reassess either upwards or downwards at the hearing itself?

Stephen Bough: So obviously, you and I have had this scheduled for a little while, so I’ve been thinking about those precise issues. Literally this week, I had one where I upwardly varied over what I thought I was going to give when I walked in. I told my staff I was going to give one thing, and I ended up giving an additional 40 months. It was a child pornography distribution and production case. I ask a series of questions when we walk in about the guidelines. Because that’s the first thing I’m supposed to calculate. And so I asked the defendant, “Have you had an opportunity to review the PSR?” And he said, “Yeah.” But from the get-go, it was a negative impression. Most people understand that federal judges are given an enormous amount of respect. Deserved or not is not the question. But that’s what we’re used to. We’re given an enormous amount of respect. People stand when we walk in the room. Yes sir and no sir. And I try to do the same, yes sir and no sir to people. So, from that very beginning, if that’s off, if people aren’t treating everybody with respect, then that hurts somebody.

And an allocution is an opportunity for somebody to say, “I recognized what I’ve done is wrong. And here’s how I’m going to try to make amends to my victims and how I’m going to try to make amends in the future and change my life path.” So if you don’t do that, you’re missing out on a piece of advocacy that is essential to the case. You have a constitutional right to it. Everybody has an opportunity to talk so if you don’t take advantage of that, it’s missing. It’s an important part of what we expect in the sentencing that’s missing. I’ve seen lots of times where somebody …

And each judge is different, too. So you got to know your judge. And in knowing your judge, knowing their background, talking to your lawyer about it, talking to guys that maybe you meet in the jail, but almost none of those guys, if it’s pre-sentencing, will have been sentenced. They’ve been sentenced and then moved out. Getting to know a little bit about your judge is helpful. And then understanding that, “Okay, I can come in, and if I’m genuine and I really have tried to figure out what I did and how I got here and the things I can do to address that.” I’m vary downwardly. I vary downwardly when I truly can understand somebody’s situation and take that anger out of the equation. When you take anger out … Lawyers, some of them are really good about, “Okay. Judge, we know this was horrible. We’re giving it to you. This particular action was horrible. But let’s put it in perspective. Don’t diminish the bad thing that was done, but try to put it in perspective.” And those, when that’s done effectively, then there’s not the anger from the sentencing judge to vary upward.

Michael Santos: So many of the people who go to federal prison or are charged with crimes have financial matters and there are victims of financial crimes. To what extend does it move you if a defendant strives to make a payment toward restitution even before he or she was sentenced? Does that have any influence on you? He knows that he’s done wrong. He’s trying to make something back, even if it’s a nominal amount, selling his car or doing whatever he can to say, “I want to make things right with the victim.” Does that effort move the needle in any way?

Stephen Bough: Yeah, sure it does. And I think it’s one of those situations where recognizing, genuine, not some made up fix, but if there has been a genuine recognition of what I’ve done is wrong and I’m genuinely going to go out of my way to fix this and I’m genuinely going to be apologetic, then a genuine effort to address those harms is always meaningful. Again, this is nothing new. It’s nothing that our moms or dads or grandma or grandpa hadn’t taught us. If you break the window, you fix it. You don’t blame it on Bobby. You go in and fix it. And if it costs more money that you got in your pocket to fix it, then you volunteer to mow the law or feed the dog or whatever you got to do to make this right. Knowing that it’s not … no way the victims fault, I’m going to make it right to whatever the victim says needs to be done to make it right. And I’m going to start right now.

Michael Santos: Judge, I would have really valued that type of guidance at the start of my journey. Those who know my story know that I made really bad decisions when I was arrested. The only thing that I wanted was to get out of prison. And I was foolish enough to believe that I could get out by going through trial. It wasn’t in my case until after I was convicted at trial that I really recognized the harm that I caused in society. I was influenced by Socrates that really changed the way that I started to think about what I did and what I could do to reconcile with society and make amends for the bad decisions I made when I was 20. But many people who go to trial, they are under the impression that it’s too late. They cannot express remorse now even though they want to do it. In your position of sitting on the bench, my question is, if somebody has pleaded not guilt and went through a trial — and I know it’s a very small percentage in your courtroom — can that person still do something to make amends and to reconcile and say, “I was wrong. I wish I got this message sooner. I didn’t.” Or does that come across as to you, less plausible?

Stephen Bough: Yeah, and I think we got a whole variety of folks that kind of fit into that equation, right? I’ve had a trial where the guy said, “I’m guilty for selling drugs, but that gun ain’t mine.” And so, going into trial on that case, by saying, “I’m guilty of the drugs. I’m not guilty of the gun,” then he’s lost nothing in the credibility standpoint. There’s other folks that maybe truly are innocent and then they will have not lost anything in that situation. I pray to God that we don’t convict innocent people but I know that it does. If it happens once, it happens too much.

And then there’s other folks that are not at that point, and maybe you were at that stage or not, where you can’t own up to it. I think at any point, when somebody owns up to a problem, that’s better than none. If the person’s truly guilty and that’s what we’re talking about, then owning up at any time, usually it’s 90 days or more between a conviction or a change of plea and sentencing. That’s not that long of time. But then in other situations, it’s long enough to figure out, “I screwed up. I made a mistake. I’ve done something wrong here and I’m committed to improving it.” I think most judges are really good about judging if that’s a genuine apology and a genuine attempt to fix it, versus I’m trying to shave a few years off my sentence.

Michael Santos: And I would agree that it is never too early and it’s never too late to begin working toward a better life and working toward an opportunity to reconcile with society and particularly, victims. What thoughts do you have on individuals who really come clean during the pre-sentence investigation report, providing a full written narrative to the probation officer that doesn’t excuse their misconduct, but rather shows the influences that led that person there? When you see that at the very earliest stage, such as the pre-sentence investigation report, does that help your assessment or deliberations over what an appropriate and fair sentence is?

Stephen Bough: Yeah, it definitely does. I think it helps for public defender or CJA counsel to be able to cite to the PSR, to say, “This is how he got there. This person’s father was never in their life. This person sold drugs at this point to get this. This person did these things and that tells the story and puts it all in context.” It’s like we talked about at the beginning of this interview, the sentencing guidelines have no reflection of humanity. It’s a grid. It’s a chart. And I put you on X Y chart. On the other hand, the 3553 factors, that statute mandates I put a human face on the individual standing in front of me. So if there’s things in the PSR that the lawyer can cite to and the defendant can cite to and talk about it, you’re creating your own evidence at that point. For good or for bad, you’re telling your PSR writer and the probation office, “Here’s everything you need to know about me and how I got here.” That is good advocacy if nothing else.

Michael Santos: It sounds like your reiterating what I heard you say at the beginning of this interview. We are always telling people who are reading our materials, is that the most important person in the sentencing hearing is the defendant himself. He shouldn’t outsource all of his remorse to the defense attorney, but rather, should make the investment of time and energy to help the judge see that individual for who he is and what influences led him there. Am I correct in understanding that’s what you’re telling us?

Stephen Bough: You’re correct. I might backpedal a little bit because the lawyer can help put that together, right? At least in my district — and I can’t speak to anybody else’s — I have a lot of respect for public defender’s office and some of our frequent flyers on the CJA panel. We appoint those people. We used to seeing them. We’ve developed a sense of respect and camaraderie with them. And so, those people can help put this in a way to explain it. The defendant has to be on it and talking about it. I keep coming back, it has to be genuine. But, most the time, I really don’t need to hear from the defense lawyer. This is about the defendant. And if you believe what I’m saying about the inhumanity of the sentencing guidelines and the humanity of 3553, the best person to tell that story is the defendant. Now I’ve seen defendants that did themselves no favors by how they got up there and maybe didn’t treat me respectfully and didn’t own up to it and didn’t have a plan to succeed afterwards. But I’ve seen plenty that have good advocates for themselves by allowing me to get to know them a little bit.

Michael Santos: And Judge, what influence do character reference letters have on your decisions at sentencing?

Stephen Bough: I’ve read that as one of our early questions. I’ve had 67 in one case. That’s too many. Sixty-seven character references are too many. I don’t need the whole community, whether it’s a white-collar crime or someone who’s been selling drugs. I work with a lot of folks who are trying to become judges in the state and federal system. And I encourage them, people who want to become judges, figure out who the … In the state of Missouri, maybe the governor and different states, it may be senators that help pick the judges. Figure out their best friends and make a connection with them. Figure out what that judge cares about. If you’re a criminal defendant, don’t bury the judge in 50 letters that they can’t read and then they start skimming over them. Give them meaningful letters. So if there’s somebody in your life that can really talk about your early stage and how you got there. I had a sentencing this week where they developed a relationship with a psychologist that really knew them and could talk about that person in a way that said, “They’ve owned this. And they know what they did is wrong. And they’ve got a plan to move forward.”

So, five is probably as many as you can really come up. If all you’re going to say is, “This guy’s a really good guy and he screwed up and please go light on him.” I don’t need 50 of those. A couple of those are okay, but I’m looking for somebody genuine. Somebody that really knows that criminal defendant. Somebody that really knows how they progressed through life and how they progressed since being arrested. They can tell me, “There’s genuine remorse and there’s genuine plan to move ahead.”

Michael Santos: In what ways can expert testimony during a sentencing hearing influence your deliberations about an appropriate sanction? Does that have any value to you?

Stephen Bough: Yeah. It’s rare. Most of my criminal docket is drugs and guns. But in certain cases, I think it is helpful. Obviously, we’re going to know about that beforehand because the vast majority of cases involve public defenders and CJA folks and so they normally have to seek leave of court to get those experts approved. But there are mitigation specialists. And typically, higher sentencing guideline range cases, they can be really meaningful. Figuring out where they got in trouble and how they got in trouble in grade school, high school, and this path that led them down that way. And then what is actually needed to fill in that gap, I think it is helpful.

But like I mentioned before, we keep our cases moving, so I need to know about that beforehand if that’s coming at me. So I can either watch it the night before on my computer or we can make the time in the sentencing hearing to hear from that person. You know, it’s a little bit of an oxymoron or contradiction, this is the most important day in a defendant’s life and I understand that. I’ve got to keep cases moving and can’t give everybody every day, the whole day. So finding that balance and me understanding that it’s the most important day in that defendant’s life and that defendant understanding I’ve got two other guys that feel the same way that we’re going to hear today and mutually respecting each other and the limits on that is important.

Michael Santos: Judge, after you sentence an individual and they’re sentenced to the custody of the attorney general and they go into the federal prison system, on rare occasions, they have an opportunity to come before you again for some type of re-sentencing, some issues. How does their behavior in prison… Can that have some influence on your decision if you have the opportunity to reassess this candidate several years later?

Stephen Bough: It has enormous considerations. I see all the time. We’ve just gone through a rash of people who have been re-sentenced based on [inaudible 00:31:53] career offenders and other situations that come in front of us. If somebody’s in federal prison and they’ve had no violations, that tells me they’ll have no violations when they get out, which is what I want. My fairytale view of the world is that the sentence in the bureau of prisons is supposed to be the punishment aspect of it and that supervised release is where we hopefully get people some skills and support and monitoring to make sure they generally follow the rules of society. So if you’ve not had any problems in prison, my thought is that you won’t have any problems when you get out. It allows me to take a risk. it allows me to take a risk. You have no violations on supervised release, to be removed from supervised release early, maybe after a couple years of doing everything positive.

I’ve seen letters where people have come… Have spent a year pre-trial in some small county prison, waiting to come. And they’ve developed a positive relationship with the guards and volunteered in the kitchen and done positive things there, and the guards have greatly appreciated it. And not become a character reference, but just said, “Steve has done everything we’ve asked him to. He’s gotten up early and he’s worked in the kitchen. He’s been a positive influence on the other inmates.” Well that’s pretty darn compelling. That means you can play by the rules. And you’re going to get out. I mean, there’s very few people that get life. You’re going to get out and you’re most likely going to be back in front of the sentencing judge if there’s ever a screw up again. And to have a clean record in prison is an enormous, positive star in your crown.

Michael Santos: Judge, you’ve been very gracious with your time and you’ve responded to all of our questions. I know that our audience will learn a great deal in listening from you. You are telling the people exactly what we try to convey in Prison Professors that it’s never too early. And it’s never too late to begin sowing seeds for a better life. And I really want to thank you for spending the time this afternoon and sharing your wisdom with our audience.

Stephen Bough: Mr. Santos, I appreciate you having me on it. It’s a distinct honor. I mean, this is one of those times we as society, this is us. This is we’re governing ourselves. This is our democracy. The individuals that you’re serving are citizens and we can all improve and become better. You’re an important part of that so thank you for what you do, sir.

Michael Santos: Thank you and God bless.

Stephen Bough: You too.”