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Sentencing and Preparing for Sentence - Don't Get Caught Unprepared for the Sentencing

By Bill Nimmo

Once an accused has been convicted by a jury or has been convicted because they pled guilty pursuant to a plea bargain, the work of preparing for sentencing begins. Rather than this being the ending of the casework, it is many times the beginning of the work for the lawyer. It is here that a real difference can be made regarding punishment. In fact, many times when a plea is negotiated it is negotiated to restrict the maximum punishment knowing that much less is possible with some creative and diligent sentencing preparation.

One of the first steps after the plea or verdict in preparing for sentencing is lobbying the probation department with information that might help provide them reasons to recommend a mitigated sentence. The probation department is not always very sympathetic, but if you can reach them with mitigating information, sometimes it can help. The softer report they write the less problem you are going to have convincing a judge of your position at the sentencing hearing.

Simultaneously, your lawyer should be developing information that will show the court that your conduct was not as bad comparatively and that there are things about you and your past that justify a lesser sentence. A good lawyer will become very familiar with your life. He will want to know about your childhood, your teenage and adult years and how they relate to your education, employment, military experience and personal and family relationships. If, for instance, you had a criminal record as a juvenile or adult, your lawyer will want to know if you were offered any rehabilitation on probation or parole.

If you do have a history of alcohol or drug abuse, your attorney will want to explore how your addiction began, how severe it became, and whether or not you received any formal treatment for it. If you have a prior criminal record and you have been through the sentencing process before in prior cases, your lawyer will also want to know whether or not you ever had a formal, comprehensive psychological evaluation done in preparation for sentencing in these earlier cases. If you have never had a formal psychological evaluation done, your lawyer will want to explore the sentencing strategy of retaining a professional psychologist or psychiatrist to perform a comprehensive psychiatric/psychological evaluation on you.

Your lawyer will likely explain that a good psychological evaluation will offer the judge important information about your personal history that may include factors which would make it understandable why you committed a criminal act. If you have a substance abuse problem or a debilitating mental illness, a psychological evaluation can help credibly explain how you are really a good person with a difficult problem. People frequently crumble under the stresses of life and psychological evaluation can help make that more understandable to people who don't know you and your life personally. If you do have a substance abuse problem, a good psychological evaluation will set out a plan of treatment and rehabilitation that could make the difference in persuading the judge to give you a chance at probation and treatment rather than custody.

For the sentencing hearing, your lawyer will assemble evidence of all the good things you have done in your life. These materials would include letters of good character from family, friends, employers, co-workers, teachers, students and any significant people in your past. These materials would also include records of your accomplishments and your achievements.

These materials are submitted to the court in a written document called a sentencing memorandum. A thoughtful and well-written sentencing memorandum will often get a judge to view you in an entirely different light. Your lawyer will want to offset, as much as possible, the negative characteristics of the crime and the negative aspects of your character with evidence of your good character with whatever mitigating psychological evidence that has been discovered through the evaluation. Your lawyer tries to show the judge that your participation in this crime represents a deviation from your normal good character and your normal desire to live a good life.

In addition to the written sentencing memorandum, a presentation can and should be made to the court on the day of the sentencing. This could include statements from you, from your friends, employers, and experts. In the right circumstances, your attorney might recommend calling the psychologist as an expert to explain the basis for his opinions. In the right case this can make a major difference. If you ask to speak, your lawyer will recommend that you remain humble and appropriately understanding of the wrong you have done. Fancy pre-planned speeches won't go over well. The court wants to hear that you are sorry and that you recognize how far you have fallen from good healthy conduct.