Let's Talk About Sentencing Advocacy
Can we talk about the "S" word?
That's right. Sentencing. If you have spent any time surfing the web looking for a criminal defense lawyer, no doubt you have come across any number of attorney websites chock full of impact words like "aggressive", "successful", "smart", and "tough." These websites include images of a stern looking man or woman, most likely with arms across the chest, and a caption informing you that you cannot afford not to hire this lawyer. Your liberty depends upon it. They say.
These attorney websites are pure marketing hype, designed to play upon the fears and uncertainties-- and the often unreasonable hopes-- that anyone who is charged with a criminal offense faces. The simple fact of the matter is that, regardless of how aggressive or smart your lawyer is, the vast majority of criminal cases resolve with some sort of a criminal conviction. It make sense, then, for any good criminal defense lawyer to develop an effective approach to something that no client wants to think about, at least early on in the process. That's right: Sentencing.
Sadly, though, from what I have seen in court, most of these tough and aggressive lawyers are woefully inadequate once the case reaches the point of sentencing. Once the tough and aggressive approach has failed to prevent a conviction, it is almost as if they don't know what to do. The client is frequently disappointed with the result acheived, especially given the amount of money spent on this "aggressive" lawyer. I see these lawyers makes sentencing remarks that are really nothing more than a rote, passionaless recitation of the defendant's biographical history, followed by a ridiculously low sentencing recommendation with no supporting reasons. The judge has no hesitation to simply ignore such sentencing remarks.
Therefore, the point of this article is to discuss what is, perhaps, the most important aspect of criminal defense: the sentencing hearing. It offers tips, based upon thirty-one years of experience in sentencing hearings, that will make any lawyer a more effective sentencing advocate.
Submit a written sentencing memorandum
From what I have seen in court, it appears that many criminal defense lawyers think that a sentencing argument is something to be made up on the fly; that it is okay to shoot from the hip, so to speak. These lawyers (correctly) think that the judge has already made up his or her mind; and, therefore, they (correctly) believe that it really doesn't matter what the defense lawyer says at the sentencing hearing.
Although there is abundant case law that admonishes judges to not approach sentencing with a "made-up" mind, this does not mean that a judge is required to make a snap decision about sentencing while sitting there in court. Most judges read files ahead of a sentencing hearing. They read the presentence report. Many even write out their sentencing remarks. Thus, the perception of these tough and aggressive lawyers is accurte: By the time you get to the sentencing hearing, the judge has already made up his or her mind-- to a large extent-- as to what the sentence will be, and why that should be the sentence.
This fact does not mean the criminal defense lawyer should simply give up, and put no effort into sentencing. It means that any effective sentencing advocate will make sure that he has input into the judge's preliminary sentencing consideration. That is, in any case where incarceration is a likely outcome, it is incumbent upon the lawyer to submit a written sentencing memorandum ahead of the sentencing hearing. In this way, the defense will have a voice in the judge's preliminary sentencing analysis.
How to write a sentencing memorandum
It is well beyond the scope of this article for me to attempt to address all of the aspects of writing an effective sentencing memorandum. The cardinal rule, though, is to make it persuasive. It does not help much to put in writing the half-hearted, passionless, remarks that many lawyers make orally at a sentencing hearing.
As a very general rule, the writing of a good sentencing memorandum must begin what asking the questions: What is the appropriate sentence, and why is this the appropriate sentence. Personally, I begin by writing a list of all the mitigating facts that I can think of (the defendant is young, he had a chaotic childhood, et cetera). Having done that, then I write one paragraph that addresses the two questions mentioned about. Frequently, by this point, a theme will begin to emerge. Once you have identified the theme, the remainder of the memorandum should be devoted to developing the theme.
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| Sentencing is, perhaps, the most important aspect of criminal defense. Nevertheless, few criminal defense lawyers are effective sentencing advocates |
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Do not be afraid to develop your theme by including non-legal resources in the memorandum. This is the true value of submitting a written memorandum ahead of the sentencing hearing. You can direct the judge's attention to outside resoruces such as studies about adolescent brain development, FBI statistics demonstrating that a person's risk for reoffending dramatically decreases after the age of sixty, or articles addressing the role of mental illness in the commission of crimes, and the lack of good mental health treatment available in the prison system. By getting this information to the judge ahead of time, complete with citations (most web citations), you allow the judge to fully understand, and to confirm, the sentencing facts that are important to the defense.
Judges truly appreciate it when the defense submits a written sentencing memorandum ahead of time. As mentioned earlier, it is exceedingly difficult for a judge to make a solid sentencing record on the spot. Consequently, most judges write out his or her sentencing remarks ahead of time. Frequently, I will hear the judge in one of my cases literally quote my sentencing memorandum in giving his or her reasons for a sentence. Why would any conscientious lawyer overlook the opportunity to do the judge's sentencing work for the judge?
Finally, in both your written memorandum and in or your oral remarks, do not forget the three elements of persuasion: logos, pathos, and ethos. Logos refers to the logic of your argument. A written sentencing memorandum is the perfect opportunity to refine the reasons for the sentence you are urging the judge to impose. Pathos refers to the passion with which you present your argument. There is some opportunity for this in the sentencing memorandum, but an effective sentencing advocate uses his oral remarks at the sentencing hearing to convey his or her passion. Refer to your client by name, do not call this person "my client." Convey your passion with the tone of your voice (think of Atticus Finch or Martin Luther King). Ethos refers to your reputation as an advocate. If you put effort into a written memorandum, and if you convey your passion, the judge will be impressed by your lawyering.
Most of all, in talking to your clients, do not avoid the "S" word. Frankly tell them, right from the start, that there is certainly a possibility that he will be convicted of some criminal offense, and it will be necessary to proceed to sentencing. From day one start doing the things that will allow you to make a compelling sentencing presentation. Urge the defendant to enroll in treatment programs, to make restitution if it is possible to do so without admitting guilt, and, if the evidence demands it, to begin accepting responsibility early on. The defendant's liberty does depend upon your efforts as a lawyer. But it rarely serves the client well to behave like a bull in a china shop. Take a more subtle approach, with sentencing always being an important consideration.
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