Why Probation Requests Fail in High-Loss Cases
A man told me his lawyer planned to ask for probation even though four victims were set to speak, the report listed assets he hadn’t disclosed, and the guideline range topped five years. He said it with confidence, as if it were a strategy. I thought back to a line from a judge: I welcome sentencing recommendations unless they are ridiculously low. That same judge said a defense lawyer loses credibility the moment they ask for something that ignores the weight of the case.
How One Sentencing Hearing Went Wrong
Three weeks ago, I spoke with someone whose situation mirrored this. Victims were preparing to speak in depth about what they lost. The government planned to ask for more than five years. The probation report listed assets that suggested he could help with restitution, yet he hadn’t committed much. Despite all this, he told me his lawyer would ask for probation.
He believed the request might “signal confidence.” What happened instead was predictable. When that request was made, the judge’s tone shifted immediately. The judge called it insulting to the people who came to speak. That one request shifted the judge’s focus from the file to the defense’s judgment. The lawyer’s credibility evaporated, and the sentence rose above what the government asked for.
Judges don’t respond well when a request ignores the obvious. Victims seated in the courtroom hear everything. So does the judge. When a lawyer pretends the harm wasn’t severe, the judge hears denial, not advocacy. And when denial shows up, sentences rise.
What Judges Read Into a Probation Request
In cases with vocal victims and clear harm, a request for probation can signal that the defense isn’t engaging with what happened. Judges read that as avoidance, not advocacy.
One bad request can stain the entire presentation.
Over time, I’ve watched the same misstep from defendants who hope their lawyer can “shoot the moon.” Judges don’t respond to optimism. They respond to:
- ownership
- restitution activity
- documented work
- acknowledgment of the people harmed
A request that ignores these points tells the court you’re not in the same reality as the people who were hurt. If credibility goes, the judge stops giving the benefit of the doubt.
People often ask me if bold requests ever work. They can—but only when the work matches the ask. Without that foundation, a probation request in a high-loss case with unhappy victims almost always backfires.
How Defendants Can Avoid Losing Credibility
If victims are preparing to speak and the guideline range is measured in years, think carefully about what your request says about you. Asking for something disconnected from the facts doesn’t show strength. It shows distance from the harm.
A better approach is to build a record that shows you understand the impact:
- consistent outreach to probation
- restitution activity
- written work that explains what you learned
- steps that show you didn’t wait for sentencing to start caring
When that record exists, your lawyer has something grounded to work with. Without it, the request hangs in the air with nothing to support it.
If you’re weighing what your sentencing request should be, ask yourself the same question a judge might ask: Does this reflect someone who understands what happened?
If you want to see how others prepared for sentencing in similar situations, you can join the next webinar or reach out for a private call.
Frequently Asked Questions
Q: Does a low sentencing request ever help?
A: Sometimes, but only when it matches the record. Judges respond to what they can verify.
Q: Can strong cooperation offset a tone-deaf request?
A: Cooperation helps, but it doesn’t erase a request that ignores victims or the guideline range.
Written by Justin Paperny, federal prison consultant and founder of White Collar Advice, who helps defendants prepare for sentencing and rebuild after prison.
Related: Cooperation in a White-Collar Case—Why It’s Not Always a Straight Line to Leniency
