The best way to present a cogent, organized, and persuasive sentencing argument is through a Sentencing Memorandum. As you may know, in either state or federal criminal court, the next stage following any criminal conviction is the sentencing stage. During this phase of the criminal process arguments from both sides are made to the judge, and the judge determines what he or she believes is the appropriate sentence.
Typically, judges will hold a sentencing hearing to allow the prosecution, defense counsel, and the defendant to address the judge on sentencing. While the sentencing hearing is an important opportunity to try to persuade the judge on what the appropriate sentence should be, counsel would be wise to file a sentencing memorandum prior to the sentencing hearing.
Why have a sentencing memorandum in addition to argument at the sentencing hearing? Because it is another opportunity to put your arguments before the judge. It gives you the chance to provide an organized, powerful argument without the pressure of an oral presentation. It allows the judge to ruminate on your arguments prior to the actual sentencing, rather than hear the arguments for the first time at the sentencing hearing.
In fact, oftentimes, the judge comes to the sentencing hearing having already made up his or her mind as to the appropriate sentence. Filing a sentencing memorandum prior to the hearing will give you the chance to get your arguments in front of the judge before the judge is solidified on an outcome.
Given the significance of a sentencing memorandum, what aspects are most important for an effective sentencing memorandum? There are five aspects to always keep in mind.
1. For Defense Counsel – Focus Your Litigation on Mitigation
There are a host of mitigating circumstances related to both the defendant and the offense that can be raised before the sentencing judge, including:
- Age and physical health
- Mental health
- Drug or alcohol abuse
- Terrible childhood
- Prior good deeds
- Defendant’s limited role in the offense
- Defendant’s actions resulted from an unusual amount of outside pressure
- The offense resulted in little or no harm
Those are just a handful of the myriad mitigating factors that may be relevant in a criminal case. Indeed, the Federal Sentencing Guidelines provide a laundry list of mitigating factors that a court must consider.
So, what to do with all of these possible mitigating circumstances for your sentencing memorandum? Focus the judge on the most important, and most persuasive ones. Justice Oliver Wendall Holmes once said of legal argument, “One has to try to strike the jugular and let the rest go.” Justice Holmes was not only saying that “brevity is bliss,” but that a few well-analyzed arguments are better than throwing a laundry list of mitigating factors and hoping some will stick with the judge.
Accordingly, focus your reader on the three or four of the most important mitigation arguments, and get the most out of them.
2. Accuracy Rather than Exaggeration
The old adage that “If the law isn’t on your side, and the facts aren’t on your side, then you should pound your fist as hard as you can on counsel table” is a stratagem that a savvy judge can see through as easily as a clear glass window. The better approach is to argue mitigating circumstances based on the facts of the case.
There is nothing worse than making a strong argument in mitigation, only to be cut down by a prosecutor who can demonstrate to the court that you have been misleading or inaccurate in your presentation.
3. Precedent is Persuasive
It is always easier to do something, or make a particular choice, when you know that it has been done before. Judges are no different in that regard. If judges know that a particular lenient sentence was imposed in a similar case, the judge is more likely to consider that more-lenient sentence in your case.
Therefore, do not be afraid to cite legal authority for the sentence you are advocating for in your sentencing memorandum. If your judge knows that other courts have found the same mitigating factors on similar facts, then the judge could be much more comfortable in agreeing with your recommendations.
4. The Power of the Parsimony Principle
Articulated in 18 U.S.C. § 3553(a), the parsimony principle requires that courts impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes of sentencing. You should look for ways in which to fold in the statutory purposes of criminal sentencing when presenting argument in your sentencing memorandum.
For example, by recognizing that a sentence should “reflect the seriousness of an offense,” and should “provide deterrence and respect for the law,” you are showing the court that your recommendations are tied to the purposes of sentencing in the first place. Making the connection with statutory purpose will give your recommendation on sentencing that much more credibility.
Moreover, there are more defendant-friendly sentencing purposes, such as “avoiding unwarranted sentencing disparities,” that allow you to remind the court about the problems of an overly harsh sentence.
5. File Your Sentencing Memorandum at Least a Week Before the Sentencing Hearing
As mentioned earlier, judges most often enter the sentencing hearing having already made up their minds on what sentence they will impose. In fact, it is likely that judges already have a good idea about what they might do after they read the presentence report.
Imagine if you could get your arguments before the judge while he or she is still considering the sentencing options. That is precisely what the sentencing memorandum is meant to do. Accordingly, the sooner you get your sentencing memorandum before the judge, the better.
In sum, if you keep these five essential aspects in mind when drafting your sentencing memorandum, you will be well on your way to making a strong case for the sentencing outcome you seek.
For federal sentencing advocacy, representation, and sound advice, look no further than Brandon Sample, Esq. Call 802-444-HELP to learn more.