Last week I posted a video with my business partner, Michael Santos and Federal Judge Mark Bennett. After I posted the video, I received some messages from people whose loved ones are in federal prison.

“Justin I would love to share this video with my son, but I cannot. He has yet to be sentenced, but he is federal prison. Can you help?”

“Yes!”

To help those who have loved ones in prison, I visited www.Rev.com to have the video transcribed. Now it will be easy for people to print the blog of the website then share it with their loved one in prison.

Now, let me turn it over to Michael Santos and Judge Mark Bennett:

Question #1: I know that you have had a long career on the bench and you’ve sentenced more than 4000 people. So what I’d like to ask you, what have you learned from listening to the people, the 4,000 people that have come before you facing criminal charges and conviction, and you’ve had to sentence? Could you tell us just briefly what you’ve learned from that long history?

Judge Mark Bennett: Sure. There are a couple of lessons learned from 23 years on the bench sentencing so many people in multiple different federal court jurisdictions. Couple of things I’ve learned is the war on drugs is a failure, that so many of the people I sentence are really good people, but they’ve made bad decisions. Oftentimes, they’re low level drug dealers, but they’re really addicts. So basically, what I’ve learned is that the sentences required by Congress are too harsh and that too many people go to prison for far too long. While prison tries, there aren’t enough resources to help people in prison to do much towards rehabilitation. Although, there are some efforts at that, but there needs to be more, and that the vast majority of people I sentence are good people who made bad decisions, largely because of their addiction. So I think that’s a really unfortunate situation that we’ve had this mass incarceration with these incredibly lengthy sentences. I’m not saying people don’t deserve to go to prison, but in my judgment, most people go to prison for far too long.

Question #2 – In light of what you’ve just said, I’m curious to know what influence, an individual who is preparing to be sentenced, what influence would his version of events with regard to how he got involved in the case, on the pre-sentence investigation report, what influence does that have on decisions that you make as you consider that defendant?

Judge Mark Bennett: Well, that’s really a very insightful question, Michael. One criticism that I have, not so much of offenders, but the defense lawyers is that so often, they just go with the government’s offense conduct statement and they don’t spend enough time with their client to contest matters in the offense conduct statement and give the offender’s point of view because a lot of times when an offender does allocute and explain some things to me, it can differ in nuanced ways from the government’s offense conduct statement, and it can often be mitigated. So I think that’s really important, I mean critically important to tell a defendant to go over that pre-sentence report many, many times, ensure that it’s totally accurate, read the offense conduct statement very carefully and really tell your lawyer how important it is to get your version of the offense conduct statement in the pre-sentence report.

Then you better have the facts to back it up if it becomes a contested issue in sentencing, which it can be. Then I listen to the evidence and I decide. More often than not, when a defendant is willing to contest the offense conduct statement, I find their version of the offense more accurate than the government’s version because the way it’s prepared is that either the probation officer’s looking through the discovery file and draws his or her own conclusions, or the assistant US attorney prepares a one-sided offense conduct statement. So I think it’s very important, if an offender can, to challenge anything in the offense conduct statement to give a different spin on it that might then influence the judge to have a more favorable outlook towards the offender.

Question 3: Well, you have a lot of experience, not only in sentencing 4,000 people, but I have had the opportunity to read some of your research papers, including one where you have reached out to, I think, more than 900 federal judges and asked them about the importance of the defendant’s version of events or what brought them there. Could you tell our audience a little bit about what you’ve learned from some of your colleagues, some of the other jurists who have the awesome responsibility of determining how much punishment is warranted for a certain offense?

Judge Mark Bennett: Yes. I think the vast majority of federal judges who do sentencing take the allocution or the statement by the offender, usually at the end of sentencing, very seriously and weigh that. So it’s very frustrated when I ask a offender who I’m about to sentence, impose a sentence, “Would you like to say anything?” I explain that they don’t have to say anything. If they do say something, I can consider it. Sometimes it helps them. On rare occasions, it hurts them. Sometimes it makes no difference, but then see the individual look at the lawyer and it’s like they’re having for the first time, should I… You can even see them whispering to the lawyer, “Should I say something? Shouldn’t I say something?” That discussion needs to take place long before sentencing because the allocution can have a huge impact, not in every case.

But across the board in the empirical study I did, allocution was a significant factor, hardly ever raising a sentence, but a significant portion of the time moderating the sentence. Maybe it doesn’t resolve in a below guidelines sentence, but it results in a judge who was thinking about sentencing in the middle of the guidelines to go to the bottom of the guidelines. For many judges, it can result, it can make the difference between a guideline sentence and a lower sentence, but there are certain cautionary things that offenders need to know about. For example, I had a sentencing just last week where I came very close to increasing the sentence based on the allocution because of the offender, and I had already indicated I was going down to the mandatory minimum. So the offender probably should not have even given an allocution because I already said I was going down to the mandatory minimum, but the offender came very close to talking me out of it because all he did was complain about the fact that his family was upset at him.

He had no empathy at all for any of the victims of the crime. It was all about him and his family. I found that offensive, so good allocutions take responsibility for their conduct, talk about the impact it has on the victims and especially, and this is pretty rare, indicate a solid plan of rehabilitation, what they think they can get out of prison programs and what they intend to do when they get out and something more than, “I just want to be a drug counselor when I get out,” because I hear that repeatedly and you just don’t put much stock in it, but somebody who’s actually taken affirmative steps to have a plan towards rehabilitation, that’ll make a huge impact on a sentencing judge if it’s sincere and believable.

Question 4: Judge, when we’re speaking about allocution, I think I’ve heard you, and correct me if I’m wrong, but I’ve heard you talking about what the defense attorney can do to help the court understand the defendant. My question would be, what would have a greater influence? If the defense attorney is saying that my client did this, or if the defendant himself has taken the time to prepare what he’s learned from the offense, how he identifies with the victim, what he’s been doing to reconcile with society, what kind of measurable, deliberate plan he’s going to take while he’s in prison to prepare for success? When you weigh both of those, the defense attorney’s saying something or the defendant in a first person, narrative showing how much he is introspective, would one or the other have more influence on you?

Judge Mark Bennett: Absolutely, Michael. It’s fine for the defense lawyer to give a short overview of what he thinks his client has learned and how he thinks his client is making changes and will continue to make changes and why his client is motivated to do so. That’s fine as an introduction, but the nuts and bolts of it, you need to hear from the offender in my view, so that we can gauge how thoughtful they are. Is this really sincere? Are they being credible? Is it realistic? If they say, when they get out, they want to be an astronaut or they want to be a federal judge, probably not very realistic. But if they say something reasonable and they have a definite plan and it’s thoughtful, that can be very powerful in an allocution and go a long ways towards mitigating a sentence.

Question 5: If the individual really wanted to take advantage of that wisdom that you just provided, would it behoove him to begin crafting that narrative and writing that narrative even before he has the pre-sentence investigation report? So you could communicate that to the probation officer, thereby, giving the judiciary an opportunity to review, even before elocution and maybe test the theories that the defendant is offering at the pre-sentence investigation report.

Judge Mark Bennett: Well, that’s one of the best ideas I’ve ever heard. The reason why I haven’t thought of it is I’m not sure I’ve ever seen it, but I would be super impressed, in reading a pre-sentence report, if I knew that the defendant had thought about that, even at the time the pre-sentence report was being prepared rather than waiting until the night before sentencing to come up with it. So that would be astoundingly impressive to me to have a defendant that thoughtful and a defense lawyer that thoughtful that they would include that information in the pre-sentence report. The pre-sentence report, because you read that, it’s primacy and recency.

Because you read that before you go into sentencing, I think most judges read any complicated pre-sentence report at least a couple of times. I know I do. That helps shape your frame of reference and your thinking going into the sentencing. So having something positive like that, as long as it’s believable and credible, would really be helpful and puts you in a better frame of buying towards that individual. If you were skeptical of it, you would have an opportunity then to think about it, what type of questions you might want to ask defense counsel or the defendant, if they were willing to answer the questions, to make sure that the offender’s being candid and incredible in their comments.

Question 6: I appreciate you for sharing that wisdom because a lot of times, defendants who are trying to prepare express some reluctance in writing out their life story because they’re afraid that it’s going to go against something that the defense attorney’s advising them. I always try to advise them, this is a very important time for you to advocate on your own behalf. As long as you’re sincere, as long as you help the judge understand the motivations that led you into that situation, you can start bringing a common humanity where the court, and not only the court, but all stakeholders, including the probation officer, including the Bureau of Prisons to start seeing this individual as a flawed person, as we all are, but somebody who wants to try to make things better. To the extent that the defendant makes that investment of time and energy to help the judge see him, I really, I think I heard from you that he advanced us as possibilities for the best possible outcome. [crosstalk 00:13:36] Another question… Go ahead, judge.

Judge Mark Bennett: No. I was going to say that probably one of the main reasons I do downward variances are most defendants that I see lack significant parental guidance. Some started using drugs when they were eight or nine or 10 or 11 or 12 years old. Sometimes it was the parents that got them using drugs. The parents were not very good role models. All of that, to me, is very important because it puts in context why they’re in front of me. It’s never surprising when you read a background like that. What would be surprising about the fact that somebody started using drugs and selling drugs and winds up in front of a federal district court judge? Nothing.

So I find lack of parental guidance and a very hard upbringing almost always to be a mitigating circumstance that justifies the downward variance. Now, it doesn’t always because every case is very case specific. Even after 4000 cases, I don’t generalize about cases at all. I look at the facts of every case, every case is different and make a judgment. So it’s very important to put the life of the individual in context because that can often explain. It doesn’t justify, but it does explain it, and in my judgment, often mitigates what the punishment should be.

Question #7: Judge, how about psychological evaluations? Sometimes a defendant may have some mental instability or issues that influences life. Do you find it persuasive at all to have professional guidance from psychologists or psychiatrists who have treated or mental health professionals? Do those types of reports have an influence and a bearing on decisions and sentencing as well?

Judge Mark Bennett: Yes. Depending upon the case, they may have more or less influence, but I find a well done psychological records and reports, medical history and reports very helpful. There are some areas where psychological or psychiatric evaluation is really critical. For example, in the child porn sex offender cases, which every federal judge has seen more and more of one of, because the statute is so broad and the punishment range is so broad and so incredibly high, one of the key issues for most judges is, is this somebody who’s just viewing it on the internet and on their computer and sharing files, or is this somebody who’s likely to go out and do hands-on physical touching and sex abuse of minor children? The best way… Nobody can predict that with certainty, but I find it very helpful to have an excellent psychiatric evaluation.

There are some psychological tests that help psychologists and psychiatrists predict the likelihood of people engaging in hands-on sex abuse with minors. So that’s an area that I find very helpful. I’ve had some reports done that say there’s a medium or moderate high chance of re-offending and physical contact with minors. Then I have reports that say there’s very little likelihood. So depending upon who the psychiatrist or psychologist is and what their credentials are and how much the experience they have in the area, I find their information extremely helpful.

So expert testimony that can explain the defendant’s behavior will, or rather help the judge at least consider factors, do have a role at least in your courtroom?

Judge Mark Bennett: Absolutely. While I read the expert witness reports very carefully, I like it better when the expert is called as a live witness, even if it’s only for the purpose of adopting the report and then giving the government an opportunity to cross examine the expert, and then giving me an opportunity to ask questions that I might have of the expert. I always do have questions. So I’m likely to give more weight to a report when the government’s had an opportunity to cross examine the expert. Usually, they only make a couple of points. Usually, it doesn’t have much bearing on my judgment. Then if the expert answers my questions to my satisfaction, I’m willing to give the report considerable weight because they’ve answered any reservations or qualifications that I have about the expert’s opinions. [crosstalk 00:18:47]

Question 8: So we’ve spoken about experts. How about the defendant’s character reference letters, getting letters from other people? What level of influence to those character reference have at the sentencing hearing?

Judge Mark Bennett: I estimated not too long ago, just a rough calculation, that I’ve read somewhere between 30,000 and 40,000 character letters on behalf of defendants because it’s not unusual to have seven, eight or nine in a case. I had a case last year where I had 93. That was a little bit too much, and they all look the same because I found out after questioning the defense lawyers, and they were very honest in responding, that the wife of the defendant had set out a form letter to all these people. It had some phrases in it and the letters just adopted the phrases. So I didn’t give much weight to those letters, but I give a lot of weight to letters if it’s somebody the person actually knows and how long and how well they know him. So I’d much rather have a letter from a street sweeper or a janitor that has known the individual for maybe more than 10 years or maybe most of their life than a letter from a state Senator or United States Senator that’s clearly writing it as a favor to the family and may or may not even know the individual.

So the status of the person writing the letter has very little barring on me, but it’s what they have to say and how they came about acquiring the information that is helpful to me. And I get offended when they tell me what the sentence should be. So lot of times, “Please give the person probation.” Well, maybe they’re an armed career criminal and they’re looking at a potential life sentence. Gee whiz. They’re not going to get probation. Maybe I’m just idiosyncratic, but I bristle when people tell me what I should do. Tell me how the person, what their characteristics are and then let me decide how that fits into an appropriate sentence. Your job isn’t to tell a judge what an appropriate sentence should be.

So give me the facts of how the person, why you know them, what their good qualities are, what you think their prospects are for rehabilitation, anything that you think would be helpful, but stay away from actually telling me what a sentence ought to be because you’re not in a position to know that. So that’s kind of how I look at it, and I think most of my colleagues look at it in a very similar fashion.

Question 9: Judge, I only have two more questions regarding preparing for the sentence. And one of them has to do with financial loss. If an individual knows that his behavior or his activities have resulted in financial loss to either victims or institutions, can he influence your perception of him if he starts making measurable efforts towards restitution, even before the sentence was imposed? For example, perhaps if he can send $50 a week or $50 a month or a hundred dollars a month, even if it’s talking about millions of dollars in loss, if he start that effort, even before sentencing, maybe as soon as the pre-sentence investigation report, would that effort, if it’s measurable and meaningful, have an influence on your perception of the individual?

Judge Mark Bennett: Absolutely. That’s much more impressive than say it in the allegation, “I hope when I get out to start making restitution payments.” You’ve started making restitution payments and you probably don’t have a lot of money. If you’ve hired a defense lawyer, they have most of your remaining funds. Being facetious there. But no, the fact that you’ve been willing, even if it’s a small amount, if that’s all you can afford. You know what? I’ve never had a defendant tell me in sentencing that, “I’m looking forward to working in UniCorps or prison industries, so I can make a little bit of money and help start making restitution payments while I’m still in prison.” I’ve never had anybody say that. Would I be impressed by somebody who said that rather than wanting to spend it on buying candy bars in the commissary? You bet I’d be impressed by it if I thought it was sincere.
Speaker 1: And the last question on sentencing I have has to do with the number of people that a defendant may bring into the courtroom at sentencing to show support. Does that, in any way, if everyone brings family members or community members into the courtroom at sentencing? Does that speak anything to you at the sentencing hearing?

Judge Mark Bennett: Here’s how I look at it. I think it operates more as on a subconscious level, but also, it can operate… It can show that there’s tremendous family and community support, and that can be a factor in the likelihood of somebody in terms of rehabilitation. On the other hand, oftentimes, no one comes on behalf of the defendant and I try not to let that influence me. Maybe the defendant is too embarrassed to have his family there. They just don’t want them there. They don’t want to put their children to the pain. So it’s just a case by case basis. You’d like to see family support. If there are good letters, you know there’s family support. Maybe logistical problems. They have to come from too far away, but it’s usually impressive to have people in the courtroom supporting the individual.

Sometimes I’ve had them raise their hand like it’s a classroom and want me to call on I’m in. Usually, I’ll say, “Well, come to the podium. Tell us who you are,” and I’ll ask the parties if they have an objection. Usually, they don’t. I’ll actually take a kind of allocution from a non-defendant because they came a long ways and they have something to say. I’ve been impressed by employers that come where the defendant has made full disclosure to the employer. They know that there’s going to be a ten-year mandatory minimum for example, but they want to come and assure me that even when the person gets out, there’ll be a job there waiting for them because they think so highly of them. So having former employers there, current employers, family members showing support.

I think the literature is pretty clear that the more support somebody has, the greater likelihood there is that they’ll be rehabilitated. So I think that can be helpful. On the other hand, in white collar cases, when you have a hundred people in the courtroom supporting a white collar defendant and they’ve written letters saying they didn’t really think what he did was that bad and he’s really a great guy and all, it can backfire a little bit too. So I think the defendant and the lawyer have to some judgment about how many people should be there.

Question 10: Judge, I’ve read your really impressive testimony and work about going into prisons to visit people whom you’ve sentenced before. Can you tell us a little bit about what you’ve learned from visiting people who’ve actually been brought into the Bureau of Prisons and you want to see them years, or perhaps in some cases, decades after you imposed sentence? What has been made the most impression on you from visiting those people?

Judge Mark Bennett: Well, it reinforces my impression at sentencing, that most of the people I sentence are good people who have made bad decisions, usually because of the influence of drugs or alcohol or both. So I come away from visiting inmates I’ve sentenced with a lot of mixed emotions, usually deep regret for the fact that I had to give such a long sentence if there was a mandatory minimum, but with great optimism that they’re making… Most of them are making the most of their experience. They’ve got a positive attitude. They’re working hard to stay in touch with their family. They’re seeking skills to help when they get out.
I leave inspired by the people I meet in prison. They’re often very different than the people I sentenced. They’ve had a chance to think about things and they’ve looked at their life and they realize this is no way to live, and they’re on the road to making major positive changes. To me, that’s both encouraging and inspiring. I would like to see more of my colleagues visit inmates that they’ve sounds. I think they would realize that so many of the lengthy sentences we give out aren’t necessary to get people on the road to rehabilitation, particularly when we have discretion not to give an extremely long sentence.

Question 11: It happens in rare cases, but perhaps one out of 10, if that, or maybe it’s one out of a hundred, but sometimes an individual has an opportunity to be re-sentenced again, whether it’s a re-sentencing on direct appeal or a 2255, and that person goes before court. One of the things that I’m hoping that you will help me communicate to the people I mentor, communicate with in prison is that the decisions and individual makes in prison, his adjustment in prison can have a massive influence whenever he gets out, but if that individual has the gift of coming before the court again to be reevaluated, reassessed, tell us a little bit about your perception of how his adjustment, what type of investment he’s made in educating himself and contributing to society in building support networks and showing a record of measurable steps that he has taken to emerge as a law abiding citizen, would that have an influence on you in your courtroom if that person had an opportunity to come before you again for a re-sentencing?

Judge Mark Bennett: It absolutely does. That was a classic case of mine that went to the United States Supreme Court, United States versus Pepper. Pepper got out. Then I got reversed because I gave him too leading in a sentence, but he had done some great things, both in prison and when he got out. The issue was could I consider post sentencing rehabilitation? I said, I could, I did. The eighth circuit twice said I couldn’t, and the Supreme Court ultimately said, yes, you can. So I think that’s very, very important. For the last couple of months, I’ve been doing lots of commutation and pardon letters on behalf of individuals I’ve sentenced. So I go back and read the sentencing transcript, read the pre-sentence report. But the number one thing for me is their record. What have they done? Have they have a clean discipline record or close to a clean discipline record, and what steps are they taking to become a better person?

What courses are they taking? What classes are they taking? Are they helping other inmates? What are they doing with their time? It’s been very rewarding the last couple months, when the lists come out of who president Obama has granted commutations and pardons to. I’ve had a number of people on those lists that I have written letters. The reason why I wrote the letter was I’ve been so impressed by what they’ve been doing in prison. That didn’t just impress me. It obviously impressed the pardon attorney enough to make a recommendation to the president to grant a commutation or a pardon.

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Justin Paperny