This article originally appeared in the American Bar Association Criminal Justice Section’s White Collar Crime Newsletter (Summer/Fall 2016) based on the White Collar Expert Analysis Section of and is published with permission from Law360.com, a digital, subscription-based legal news service operated by Portfolio Media, a subsidiary of Lexis Nexis© 2016.
By Alan Ellis
In an article published in the fall 2015 issue of the American Bar Association’s Criminal Justice magazine (“Advice from the Bench for the White Collar Client Facing Sentencing”), I shared some of what I have learned from federal judges during my nearly 50 years of practice. After that article was published, I realized that, even though I have appeared before judges across the country and have worked with many defendants and attorneys, there is always more to learn.
What resulted from this self-reflection is a multi-part series of articles being published in Law360’s White Collar Crime Expert Analysis Section. For the series, I’ve interviewed 18 federal judges, discussing with them their philosophies on and advice for lawyers representing clients at federal sentencing.
When asked which of the cases coming before them the judges find most challenging, there was agreement: predatory child sexual offenders where children have been harmed and white collar criminals where vulnerable people have been harmed. Judge Patrick Schiltz of the District of Minnesota in Minneapolis said that among his hardest cases are those involving white collar “con men who prey on vulnerable victims.” “You need to show me your client is not a con artist at heart, that he is not a psychopath or a sociopath. If there is a mental illness that contributed to the commission of the crime, let me know about it,” he said.
As I analyzed the information shared during the interviews, a disturbing fact became apparent. The judges feel that we criminal defense lawyers are falling down on the job when it comes to sentencing. Simply stated, judges said they are not getting the information they need during the sentencing phase of a case.
In this article, I summarize some of the themes and advice that emerged from those interviews and the Law360 series.
Not surprisingly, the judges stressed the importance of the credibility of the lawyers appearing before them. What might be surprising are some of the recommendations the judges provided as to how that credibility is established. While they appreciate a lawyer’s vigorous defense of their client, they caution lawyers to remember their audience: the court.
The judges do not want a white-washed version of the defendant’s crimes. They want candor. Otherwise, they can feel the lawyer is being manipulative. In a particularly reprehensible case, the judges recommended that the lawyer acknowledge that the offense was, indeed, a heinous one. As Judge Otis D. Wright II of the Central District of California put it, “Once we are both in agreement as to what the client did and how the victims have been (affected) by it, that lawyer has a lot of credibility going forward.”
While most judges welcome a lawyer’s sentencing recommendation, they all agree that a critical mistake they see lawyers make is to ask for too low a sentence. In the judge’s eyes, recommending a ridiculously low sentence to please your client damages the credibility of the other aspects of the information presented. Judge Wright says, “Don’t take yourself out of the conversation.”
It was recommended that a lawyer should not worry about asking for a higher sentence than is ultimately imposed. After all, it is not likely that your client is going to be unhappy if they get a low sentence. Judge Schiltz readily welcomes a lawyer’s recommendation of a sentence, saying that some attorneys have a real “knack” for making well-reasoned, principled and appropriate recommendations.
Judges also find it off-putting and useless when lawyers regurgitate information the judge already knows. A common comment was “Tell me something I don’t already know about your client.”
I frequently heard the words “trust” and “credibility” from the judges. Attorneys would be wise to keep this in mind, especially with respect to the information presented, arguments made and sentences recommended.
Another aspect of establishing credibility with the judge is the presentencing memorandum. Judges dislike when lawyers do not submit one of these, submit it on the eve of sentencing, or submit a poorly prepared memorandum. They unanimously don’t want boilerplate Booker and its progeny citations. As Judge Walter H. Rice of the Southern District of Ohio in Dayton said, “If I don’t know it by now, the republic is in danger.”
Senior Judge Mark Bennett of the Northern District of Iowa also agrees that lawyers should minimize citations in their sentencing memoranda. “I get annoyed when lawyers cite Booker and the 18 U.S.C. §3553(a) factors as if I didn’t know the law,” he said.
Judge Cynthia Bashant of the Southern District of California in San Diego wants counsel to listen to her concerns and respond to them. She advised, “If I’ve given a tentative indication about how I am going to rule on a particular guideline issue, and it is in the defendant’s favor, don’t argue it.”
Judge Justin L. Quackenbush of the Western District of Washington in Spokane is interested in nationwide sentencing statistics and recommends that lawyers provide them at sentencing: “Sentencing statistics from the United States Sentencing Commission should be consulted (since) those statistics show other judges have often departed from ‘draconian’ guideline ranges; for example, child pornography possession cases.”
Your Clients Need to Sell Themselves
The judges take the view that sentencing is personal, and they want the victims and their families to know that that judges care about them. To that end, judges want to see that your client has internalized what he has done, why he did it, what he has learned from it and why he is not going to do it again, and, in a white collar crime case, how he is going to make the victim whole.
Virtually all want to see that the defendant has internalized what he has done so they can determine whether he has seriously taken responsibility and is truly remorseful. Allocution can play a big part in humanizing the defendant. Judges want to hear from the defendant personally, but caution that they typically can spot insincerity or an attorney-authored script.
A lawyer has to prepare his or her client for this carefully. Your overall purpose has to be humanizing your client. Help your client to tell a compelling story.
Important to Judge Jon Levy of the District of Maine in Portland is what the defendant has done since being apprehended. For example, if detained, has the defendant taken advantage of any rehabilitation programming or performed a useful service, like teaching other inmates a new job skill at the jail? On the other hand, he said, “If the defendant was on presentence release, I want to know what she or he has done during that period, whether the defendant has made amends or paid restitution; was the defendant working and how did it go; has the defendant received mental health or substance abuse treatment and what do the providers have to say about the defendant’s progress; and generally anything that bears on whether the defendant has taken meaningful steps to turn his or her life around.”
Similarly, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia said, “It is helpful when a defendant who is intelligent and educated tutors other inmates in prison or helps them with letters, legal research and writing.”
If the presentence report says that defendant is the sole supporter of his family, the lawyer should document and give examples of this. For example, Judge Quackenbush recommends that, “[i]f there is an elderly family member who will suffer as a result of his incarceration, I want to know precisely how. The lawyer needs to bring this to life.”
However, none of the judges are comfortable with the defendant bringing young children to the sentencing.
“I can oft determine a defendant’s sincerity during a colloquy at sentencing. I often engage the defendant in conversation so I can learn more about him,” said Judge Walter H. Rice.
Judge John R. Adams (Northern District, Ohio) commented, “[A] defendant’s allocution is generally more important than what a lawyer says at sentencing. I don’t want to have the defendant making excuses for his conduct.”
None of the 18 judges I have interviewed so far have told me that allocution is not important.
Judge Adams doesn’t want to see a defendant wallow in self-pity. “He should start his allocution by apologizing to the victims,” he said. “I also want to see what a defendant has done in an attempt to make the victims whole, particularly in white collar fraud cases. If I see a Presentence Report that says the defendant has spent a lot of money on luxuries and has nothing left to pay back restitution, I get very annoyed.”
Judge Rice, who is considered as being at the end of the spectrum, said, “I can oft determine a defendant’s sincerity during a colloquy at sentencing. I often engage the defendant in conversation so I can learn more about him.”
He also commented that he does not want to hear a canned speech. “I come out on the bench with a tentative range of sentence in mind, but a good allocution can cause me to impose a lower sentence. I may ask the defendant if he has harmed others and I may ask him what he plans to do about it.”
Judge Rice will often ask a defendant what he is going to do upon release from prison to determine whether the offender is likely to reoffend. “I often engage a defendant in allocution so I can hear more about him.”
Judge Robert Scola of the Southern District of Florida said, “I suggest that you have a colleague listen to your client’s proposed allocution and ask him the questions that the judge may ask.”
Psych Evaluations Can Make a Difference
Many judges feel that mental illness is rampant among criminal defendants, and most of them welcome psychological reports to better understand your client. However, they caution that they are only going to give these reports weight if they are credible. The judges say they want to know whether mental illness was a contributing factor to the defendant’s crime and they find evaluations that were done before the defendant was caught as more influential than a professional who spent more than an hour with the client awaiting sentencing.
Judge Amy St. Eve of the Northern District of Illinois in Chicago finds it more helpful if the expert is someone who has treated the defendant for a significant period of time rather than someone who has just met the defendant at the jail and interviewed him or her for two hours.
Judge Quackenbush says that he looks favorably on defendants with a substance and/or a mental health problem who seek rehabilitation and treatment before sentencing; better yet, before being caught. Serious medical issues also are of importance to Judge Quackenbush. He notes that general deterrence is not a major factor, but says that positive family connections are an important consideration. “A supportive family plays an important role in the sentencing decision,” he said.
All the judges want any victims to be made whole, particularly if they are vulnerable individuals. Most of the judges welcome even a step in the right direction in making restitution. Judge Scola says it is better for the 50 character letter-writers to contribute $50 each to the restitution fund. Starting to make payments throughout sentencing can also go a long way.
Judge Neal Wake of the District of Arizona in Phoenix repeated that what is important is that the defendant has internalized his crime and takes ownership of his mistake. “The payment of restitution is a good example of internalizing and owning the offense,” he said. “Even as little as $25 a month demonstrates to me that the defendant is committed to rehabilitation.”
Judge Wright expects a defendant to make restitution, or, in other words, to “put his money where his mouth is. I want heartbroken, vulnerable victims to know that I take what happens to them very seriously. My sentences will reflect this, particularly where I believe a defendant has not done what he could have to make things right with his victims,” he said.
Similarly, Judge Adams said, “If I see a presentence report that says that the defendant spent a lot of money on luxuries, but has nothing left to pay back on restitution, I get very annoyed. A defendant needs to acknowledge what he has done and do his very best to make the victims whole.”
Character letters can be important to the judges, unless they are form letters. All agree that, to be credible, the writer should acknowledge that he/she is aware of what the defendant has done. The judges agree that it is the quality that counts, not the quantity. Through character letters, judges are looking for additional insight into who the defendant really is and they would like to see information not otherwise shared by the lawyer.
Judge Schiltz recommends that lawyers screen character letters carefully before submitting them. He said that he appreciates learning about a good deed that is not otherwise known about the defendant. He gave an example of “a defendant who, during a heavy snowstorm, shovels the sidewalk of an elderly disabled neighbor.”
Judge Schiltz feels that inarticulate character letters that give examples of a defendant’s kindness often come across as more genuine.
Judge Jed Rakoff of the Southern District of New York said that “the number of character letters is not that important; it’s the quality that counts. What I am looking for is good deeds that are unknown to others. For example, a defendant who has done something for a neighbor without any thoughts of obtaining anything in return.” He also notes that one thing a character letter should not state is that the writer “can’t believe that the defendant did what he was convicted of.”
A letter from an employer stating that he knows what your client has done, but would rehire him upon his release, can be particularly helpful.
Collateral Civil Consequences
In appropriate circumstances, many judges have told me that they are interested in collateral civil consequences. For example, explain what the loss of a professional license means to your client. Point out that it is unlikely that he or she will be able to pursue a lifelong dream.
In cases where probation or a short sentence is in play, have your client secure a community service option. The defendant’s community service carries weight with Judge Bennett: “If I am considering probation, it can tip the scales.”
Have the defendant start doing the work, get a letter from the organization confirming that he or she is doing the work, and then urge the judge to make it a condition of probation or supervised release that your client be required to continue to perform a significant number of hours of this service to the sponsoring agency. Judge Bennett appreciates community service, particularly if a defendant has performed it before sentencing and there is a good letter from the agency asking that the defendant be allowed to return and continue performing community service.
What has struck me most during these interviews is that the judges feel that we lawyers frequently do not give them the information they need at sentencing. Judge Patrick J. Schiltz said it this way: “It’s surprising how many otherwise-competent attorneys ‘punt’ at the sentencing hearing.” Judge Robert Scola suggests that we lawyers take a page out of the book from our death penalty colleagues and advised, “Don’t wait to think about sentencing advocacy.” In other words, since 99% of one’s federal criminal clients will face sentencing, start preparing the case for sentencing early on.
More than one judge has told me that you should not minimize the seriousness of what your client did. In other words, if you can show that you are on the same page with the court about the seriousness of the offense, the chances increase of having your other statements accepted.
Judges want to see that your client has internalized what he has done and what impact it has had upon his life, the lives of his victims, if any, and, significantly, his family and close friends. While it is helpful for us to explain why a client did what he did, what he has learned from it, how he is going to make the victim whole and why he’s not going to do it again, it’s better when this comes from the defendant.