By Alan Ellis and Tess Lopez
In fall 2009, a client was facing sentencing in a small town after a lengthy trial. Not only was he facing sentencing in a case that had attracted national attention, he also faced an unsympathetic local community as well as an antagonistic press. It was clear to our defense team that a unique approach was needed to overcome these negative obstacles.
One of the most significant outcomes of the Booker decision is the new relevance of the client’s personal history and characteristics. (United States v. Booker, 543 U.S. 220 (2005).) Prior to Booker, the district court was restricted by the federal sentencing guidelines, a system that focused almost exclusively on the circumstances of the offense and the offender’s prior record. Most of the personal characteristics of the offender and the other factors outlined in 18 U.S.C. 3553(a), such as the need for treatment and rehabilitation, the need to pay restitution, and sentencing disparity, were not addressed by the guidelines and, therefore, were not considered by the court. The court’s focus was on the instant offense and offender’s prior record; it would not take into consideration an offender’s lifetime of good deeds, service to the community, nor positive contributions to society. Neither did the court consider substance abuse or mental health issues or the need for treatment.
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Originally published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved.
By Alan Ellis