How can your criminal defense attorney help the judge see the real you before sentencing?

The criminal justice system dehumanizes defendants before disposing of them. As a consequence, prior to sentencing, the criminal defense attorney faces the daunting job of introducing the defendant to the judge and prosecutor as a unique individual, with hopes and dreams, friends and family, strengths and weaknesses. Judges and prosecutors have more difficulty sending to prison an individual they could know as a friend.

The presentence report rarely achieves this objective. Even the section that describes the defendant’s upbringing and family, reads like an incomplete list of facts, raising more questions than it answers. There are, though, other opportunities for the criminal defense attorney to humanize the defendant and help the judge and prosecutor see him or her as an individual. The most effective of these are (1) the sentencing memorandum and (2) letters from friends and family. (The defense attorney also can make an effort to humanize the defendant at the sentencing hearing, but this may be too little, too late, because most judges already have decided what sentence they will impose by the time they take the bench at sentencing.)

If you or a loved one is facing sentencing, talk to your criminal defense attorney about the following:

The sentencing memorandum

The sentencing memorandum should read like a narrative, humanizing the defendant, explaining his offense, and suggesting how he, with the court’s help, will avoid the same or similar behavior in the future. The sentencing memorandum should accomplish these three purposes:

Show that the defendant is better than his worst day.

The defendant’s crime represents the worst he has to offer; he is more and better than that. The sentencing memorandum should show the best the defendant has to offer. It should tell the court about the good works the defendant has done for his family and community, and how he has prevailed over various hardships or how disappointments have oppressed him. This portion of the memorandum should be supported with references to letters from friends, family, community leaders and persons whom the defendant has assisted.

Explain why and how the defendant came to this.

Explanations of the circumstances, personality disorders, need or mental illness that led the defendant to wrongdoing can help to mitigate his culpability. These explanations rarely will amount to an irresistible cause for the offense, but the force of the narrative can make the defendant’s crime sound like the inevitable climax of his personal situation. For example, depression does not cause tax evasion, drug-trafficking or bank-robbing. However, people who are depressed, whose attempts to achieve prosperity flounder, often engage in riskier and riskier behavior in a disguised call for help. Medical and psychiatric reports and letters from therapists and family members can be used to support this argument.

Argue that something short of a lengthy incarceration will prevent the defendant from re-offending and protect the public.

The defendant can help this argument by seeking post-arrest counseling and treatment for his disorders and addictions. Judges also consider cooperation against other offenders, or attempts to do so, as strong evidence that the defendant has severed his criminal ties and started down a law-abiding path. A specific sentencing alternative (e.g., boot camp, intensive probation supervision, an inpatient drug or alcohol program) might be appropriate in this regard.

Letters of support

Heartfelt letters from the criminal defendant’s friends, coworkers and family are crucial. Judges treat a lawyer’s words with appropriate skepticism. They are more impressed by simple words from upstanding community members who know of the defendant’s errors, but still support him publicly. Letters work better than live witnesses at sentencing because judges rarely change their minds the day of sentencing and they appreciate having the leisure to review the letters in chambers. Letters should be written and sent to the defendant’s attorney well in advance of sentencing, so the defense attorney can screen and bundle them to present to the judge and can refer to them in the sentencing memorandum.

The purpose of these letters of support is to request leniency of a judge for one convicted of a crime. Each letter writer should be told the defendant’s crime of conviction, at least in general terms. (When a letter of support is retracted after the writer learns the nature or severity of the defendant’s crime, it looks very bad.) Each letter writer should be instructed to:

  • Introduce himself (or herself) and describe how and how long he has known the defendant.
  • Offer an opinion about the defendant’s character and, if known, his reputation in the community.
  • Avoid comments that contest or challenge the defendant’s guilt.
  • Tell a story (or stories) that demonstrates the defendant’s character.
  • Ask the judge for mercy, not a specific sentence. An exception would be an immediate family member who can express a compelling reason to have the defendant home to attend to family needs.