Steps the criminal defense team can take to prepare for the sentencing hearing
At sentencing, the goal of the criminal defense team (the criminal defense lawyer, the defendant, the defendant’s witnesses) is to present a narrative about the defendant that explains how and why he arrived at the point in his life where he committed his crime, how he will avoid wrongdoing again, and why the judge should feel confident that the proposed punishment addresses the goals of rehabilitating the defendant, deterring his and others’ wrongdoing and protecting the public.
If you or a loved one is facing sentencing, here are some steps your criminal defense team can take to prepare for the sentencing hearing:
Take steps toward rehabilitation and document those steps
As early in the case as possible, the criminal defense team should address what steps the defendant can take to mend the error of his ways and convince a judge that he has been rehabilitated. Good intentions prove nothing. It is best to present evidence of concrete steps the defendant has taken to put his life in order, through drug treatment programs and gainful employment. Each of these steps should be documented with certificates and letters from treatment and counseling programs and employers. Your criminal defense lawyer should deliver all certificates and letters and sentencing memoranda to the judge and prosecutor at least one week before sentencing.
Have friends and character witnesses ready
For the most part, the judge has made up his mind by the day of the sentencing hearing and does not want to hear lengthy testimony, but a few well-chosen witnesses can have impact. Three types of witnesses are best:
(1) A very close friend or spouse. This person should attest to the goodness in the defendant, his remorse and suffering for his offense, and the rehabilitative steps he has taken to reform and make amends.
This person also might write the court and testify about any special needs only the defendant can meet (e.g., a particularly ill or disabled family member for whom the defendant cares on a regular basis).
(2) Individuals who can describe the difference the defendant has made in their lives through especially charitable or noble deeds.
(3) Ministers, public servants and community leaders who know your client and can attest to his good character. These witnesses show that a person of good repute thinks so highly of the defendant that he will risk his own reputation by testifying publicly for him.
To be useful, these witnesses must enjoy the judge’s respect, must know the defendant well, and must be informed about the nature of the crime and any sordid details which the prosecutor might disclose at a sentencing hearing. Prepare all the witnesses for the usual character witness cross-examination along the lines, “Would you have the same opinion of defendant’s character if you knew that he pleaded guilty of stealing from a charity or to selling drugs to children?”
Seek the prosecutor’s and probation officer’s input
Usually, the prosecutor seeks prison time and views treatment programs as attempts to avoid just punishment. However, prosecutors also like to think of themselves as both righteous and reasonable. Thus, it does not hurt to explore the prosecutor’s likely reaction to the defense team’s arguments and proposals. For example, the criminal defense lawyer might explain to the prosecutor that the defendant suffered from depression, which ran in his family, and he began to self-medicate through drugs; the defense attorney might discuss how the defendant has pursued treatment with success, and the reasoning behind the defense team’s proposal that probation be imposed to include continued treatment.
Line up social workers and therapists to testify
Psychologists and mitigation specialists can describe how the defendant’s misfortunes led to his misdeeds. However, this testimony does not help much unless defense counsel can demonstrate the steps the defendant has taken to reform and the workable plan he has for the future.
Early and full restitution to the victims impresses courts and might deflate the victims’ anger and opposition to any leniency.
Check for special sentence thresholds
Your jurisdiction may have peculiar rules that trigger substantial changes in the length or nature of your client’s sentence at specific sentence lengths. For example, in the federal system, inmates are eligible for good-time release only if their sentence exceeds one year, meaning that a defendant sentenced to a year and a day serves less time than a defendant sentenced to eleven months. An experienced criminal defense attorney will thoroughly review the sentencing laws and with the presentence investigator about peculiar sentence options and pitfalls.
The defendant’s testimony
A defendant has the right to address the court at sentencing, but defendants often hurt themselves more than help. Defendants usually want to tell the judge that they really are good people and that the offense was atypical of them; that other forces (e.g., a bad marriage, depression, drug and drink, or evil friends) led them to commit their crime. In most instances, this sounds like excuse-making and serves only to alienate the judge.
A better approach is to let other witnesses (family, friends, therapists) describe the good side of the defendant and explain what led him to commit his crime. The main things judges want to hear from defendants are remorse, shame and a resolve to do whatever it takes to avoid relapse. The defendant succeeds if he makes a brief and sincere-sounding apology to the victims and the court. In short, “grovel or keep quiet” is the best advice a criminal defendant can receive before the sentencing hearing. Caution: Do not underestimate how difficult this may be for the defendant. Thus, the second-best piece of advice criminal defendant can receive before the sentencing hearing: write out what you will say, rehearse it, and read your statement to the court, rather than improvising.