Sentencing the White Collar Offender: A View from the Bench
I’ve been practicing law for nearly 50 years. During that time, I have had a great deal of experience with judges who have been willing to share all manner of suggestions. This article presents some of their best advice for white-collar criminal defense attorneys whose clients are facing sentencing.
Minimize citations in your sentencing memorandum. For example, don’t cite or quote Booker, Kimbrough, Gall or the 3553 factors. Judges tell me they do not need to be reminded of boilerplate-type information presented in lengthy memoranda. Like most in the legal profession, judges are very busy and often in the midst of a trial. One suggestion for sparing the judge, and you, the time and effort that goes into preparing and reviewing such a memorandum is to create a sentencing video. In addition to saving time, a sentencing video can portray the defendant’s remorse and the struggles of those who would be adversely affected by their incarceration, as well as the benefit of a personal connection with well-spoken character witnesses. See Ellis and Lopez, “Use of Video,” Criminal Justice (Summer 2011).
Own the mistake and demonstrate remorse. If possible, emphasize that the defendant is a hardworking, contributing member of society who acted out of character in an otherwise law-abiding life and strayed down the wrong path this one time. Be sure to address why he or she won’t do it again.
Point out instances of disparity. Show what sentences other judges in the same district are imposing on similarly situated offenders in similar cases. Use data from the Sentencing Commission from the same and other districts within the state, as well as data for all such cases within the circuit. Finally, include national data and statistics. Judges admit to being more inclined to follow what their fellow judges in their district have done and, to a certain degree, those within the same state and circuit. It is not particularly helpful to talk about a case in a distant geographic area unless it is right smack on-point. Make sure any cases you cite are close to yours in offense, facts, prior record and offender characteristics. Otherwise, you may be comparing apples to oranges – and the judge will know it.
Demonstrate sincerity through restitution efforts. If someone was victimized as a result of your client’s actions, start a restitution program. Be certain you can show that the defendant has started to made contributions to the program. Propose an alternative sentence and, if you can, get the victim to support it.
Address collateral civil consequences. In appropriate circumstances, explain what a loss of a professional license means to your client. For example, point out that it is unlikely that he or she will be able to pursue a lifelong dream.