How to Prepare for Sentencing Hearings

The goal of any person charged with a criminal offense is obvious – to win the case.   A dismissal of all charges or a not guilty verdict on all charges eliminates the necessity of a sentencing hearing, punishment and the long term consequences of a criminal conviction.

All criminal defense attorneys know that winning the case is not always realistic – and even if it is realistic you may still lose on some or all counts.  Sometimes a guilty verdict after a trial is the unfortunate reality no matter how good the attorney, how good the defense or how weak the evidence.

In 34 years of practicing law I have met some of the best attorneys in the U.S.  I never met one who never lost a case.  If you try criminal cases you will lose criminal cases.

The concern of all judges before imposing sentence is first, why the offense was committed and second, the likelihood it will reoccur.  If there are facts and circumstances which may provide some degree of justification, they must be spelled out for the court.  If there are facts which strongly suggest that it is very unlikely that a defendant will reoffend, they must be conveyed to the court.  If the defendant is a recidivist and has a long record, the court needs to be informed why this time is different.

Criminal attorneys must not only thoroughly prepare for trial, but must also simultaneously prepare for sentencing.  Mitigating the possible consequences of punishment should be explored in the first meeting with the client.   Follow up with family and friends is also necessary because our clients are not always the best historians.

Mitigating Evidence

Mitigating evidence – hospital records, school records, DHS records, mental health records, medical records, juvenile court records – sometimes take months to get.  The most important battleground of the case may be sentencing and it is never too early to begin preparing.

Immediately after the initial client meeting, the client should begin with steps toward the rehabilitation process.  The need for counseling, treatment and evaluative reports; substance abuse; mental health disorders such as severe depression, suicidal thoughts, PTSD; behavioral addictions such as sex or pornography or gambling.  All of this needs to be explored early in the process of legal representation.  The need for inpatient treatment – ideally before arrest, indictment and criminal charges – should be done as soon as possible.  The Court may consider extraordinary post offense rehabilitative efforts as grounds for mitigation at the time of sentencing.

Defendant’s Sentencing Memo can have a significant impact on a defendant’s sentence.  In federal court – and most county and state courts –  the judge is required to order a Presentence  Report.  The reports are often referred to as the “PSR” (in federal court) or “presentence report” (in state court).  The sentencing report is prepared by United States Probation or county probation.  The probation officer assigned to prepare the report will investigate, usually thoroughly, the defendant’s background.  The report will contain information from various sources – the indictment, the police reports, the prosecutors, the U.S. Attorney’s Office, law enforcement, the defendant, the defendant’s family members, the United States Sentencing Guidelines, the defendant’s financial records including bank and credit card statements, the defendant’s substance abuse, mental health and physical health histories.

It will, and it should, contain a vast array of information about a defendant.  It is confidential, it is not subject to disclosure except to the parties and the court, and it is not part of the public record in the case.  It will contain sentencing recommendations to the court, including recommended aggravating and mitigating circumstances, sentencing variances and sentencing departures.  Judges may meet with probation officers or confer with probation officers about the report and about sentencing issues and legal issues and about the sentence that will be imposed.   It has a significant impact on punishment and the sentence imposed by the court.

The PSR remains important post sentence as well.  If prison is expected to be imposed, the PSR is a part of the prison designation process so it must be accurate and should contain the most up to date information so the defendant is properly designated to the best possible prison.

After the Presentence Report

After receiving the presentence report the parties – the defense and the prosecution – will often submit a sentencing memorandum which will contain legal arguments for or against mitigating or aggravating factors, sentencing departures, sentencing variances, objections to legal issues contained in the report and objections to factual errors or omissions in the sentencing report prepared by probation.  The sentencing memo will also contain legal arguments based upon application of the sentencing guidelines.

The goal for the defense attorney at sentencing is to present to the court all facts, circumstance and history to permit the most fair and reasonable sentence – “a sentence sufficient but not greater than necessary” Title 18 U.S.C. Section 3553(a).  This is done through the submission of a defense sentencing memo which should contain evidentiary support in the form of evaluations, reports, records, letters, witnesses, etc. – medical (physical and mental health), educational, family circumstances, substance abuse, charitable or community works, and from all relevant sources such as medical professionals.  The defendant’s sentencing memorandum can have a significant impact on the sentence.

It is extremely important that the defendant be well prepared to address the court at the time of sentencing.  This is called the “allocution” and the defendant has a right allocute.   If the defendant elects to address the court, he should be prepared to fully accept responsibility and not shift blame – even if justifiable – to others, especially not the victim.  The defendant should defer to his attorney to shift blame if such an argument is truly warranted.  The defendant should be prepared to answer tough questions from the court.  If the defendant allocates well, it may result in a shorter sentence.  If he does not it may result in a longer sentence.  It is typically the most important moment in the sentencing hearing and it should be handled delicately and carefully.