Mitigators Ease Clients’ Way to Better Prisons, Less Time Behind Bars
ABA JOURNAL, March 2003
By: Mark Hansen
If San Francisco-area Lawyer Alan Ellis had had his way, former Taliban foot soldier John Walker Lindh would be spending the next 20 years at a low-security federal prison near Santa Barbara, Calif. And that’s what he told the judge at Lindh’s sentencing last fall. Lindh would have been relatively safe in such a facility, which is home to a lot of non-violent inmate’s serving long sentences for sophisticated offenses. Such a placement also would have fulfilled Lindh’s wish to be relatively close to his parents, who live in the San Francisco Bay area. And the institution itself, the federal prison in Lompoc, would have been particularly well-suited to satisfy Lindh’s desire to pursue an education, Ellis said at the time.
“He’s not looking to play handball and tennis,” Ellis said then. “He’s looking for a place to study.”
But why should Ellis, who did not represent Lindh in his plea bargain, have any say about where the “American Taliban” would do his time? Because Ellis is one of only a handful of U.S. lawyers known as post-conviction specialists or sentence mitigators.
These high-priced consultants specialize in getting their clients – among the most notorious defendants in the country – the lightest possible sentences to be served under the best possible conditions. Knowledge of prisons is critical in this job. Ellis shows his expertise as co-author of the Federal Prison Guidebook, sort of an overview of the entire federal prison system.
Though he was consultant to Lindh’s defense team, Ellis couldn’t do anything about Lindh’s 20-year prison sentence. That was agreed to as part of Lindh’s plea bargain on charges of helping an enemy force (the Taliban) and carrying explosives.
But Ellis did recommend to U.S. District Judge T.S. Ellis III (no relation) of Alexandria, VA., that Lindh be placed in the Lompoc facility. The sentencing judge then recommended Lindh serve his time in a federal prison in California, but he did not specify Lompoc.
As it turned out, Lindh did end up in California, but not at Lompoc. In late January, he was quietly transferred to the Federal Correctional Institution in Victorville, a medium-security facility in the Mojave Desert about 100 miles northeast of Los Angeles.
“He ought to do OK [at Victorville],” Ellis says. “It could’ve been a lot worse.”
Inmate designations are typically made by the Federal Bureau of Prisons, which bases its decisions on a variety of factors, including type of crime, length of sentence, history of violence or escape attempts, special needs and any recommendations made by the sentencing judge.
HIGH FEES TO EASE HARD TIME
Sentence Mitigators are not new, Arbitrageur Ivan Boesky – noted for saying, “Greed is healthy” – had one. So did junk bond king Michael Milken; Leona Helmsley, the hotelier once called “the Queen of Mean”; President Clinton’s friend, U.S. Associate Attorney General Webster Hubbell; and a host of other well-heeled, white collar criminals who were facing the prospect of doing hard time. Their post-conviction specialists, for fees of up to $425 an hour, did whatever they could to keep their clients out of prison, or make the incarceration as painless as possible.
“I like to think I can get people a better result than they otherwise might reasonably expect,” Ellis says.
Sentence mitigators have been around for 20 years or more. But the recent spate of corporate scandals has generated new interest in the field.
Ellis says he has anywhere from 60 to 90 clients at one time, mostly of the white-collar variety, but about a third of whom are drug defendants. The rest face charges ranging from bank robbery to trafficking in child pornography.
The National Center on Institutions and Alternatives, a prison reform and sentencing advocacy group based in Alexandria, Va., practically invented the field in 1970s, according to Herbert J. Hoelter, the chief executive officer.
And to date, Hoelter says, the center has provided direct sentencing assistance in more than 10,000 cases in all 50 states and most federal courts.
Ellis says he tries to show a sentencing judge that the client is not a typical offender charged with a typical offense, but someone who is deserving of leniency.
“Most judges just want to know why this particular guy did what he did and be assured that, if they cut him a break, it won’t come back and embarrass them,” Ellis says.
According to the U.S. Sentencing Commission’s 2001 annual report, only 64 percent of all defendants were sentenced within the federal sentencing guidelines in 2000. About 1 percent of all defendants were sentenced above the guidelines.
The other 36 percent were sentenced below the guidelines because they cooperated with prosecutors, suffered from diminished mental capacity, showed evidence of substantial rehabilitation or proved other mitigating factors.
Ellis says he makes no guarantees, but he won’t take a case that he believes has no merit. He limits his practice exclusively to the federal courts because federal law is the same wherever he goes.
“I subscribe to the theory that it is better to refuse a case and be thought ignorant than to take a case and remove all doubt,” he says.
Perhaps a testimony to the effectiveness of mitigators, practitioners say the field has experienced steady growth over the years.
“We have peaks and valleys like other criminal defense lawyers,” Ellis says. “But I haven’t missed any meals.”