The federal sentencing guidelines took effect on November 1, 1987. As a former federal probation officer, I watched a judge languish over sending a 77-year-old woman to prison for 10 years who carried drugs in her girdle. A 20-year sentence for a marijuana grower. Time and time again, judges complained that their hands were tied and some were angry and outspoken about it. Probation officers became guideline robots with not a thread of compassion or humanity allowed. Recommendations for sentencing were mathematic computations rather than well considered, balanced solutions for sentencing. Such sentences were supposed to reduce disparity.
The federal sentencing guidelines have lost credence with the Court. Today, judges are following the advisory guidelines 46.3% of the time.
The historically changeless legal system has begun to shake itself awake.
Judges are requesting options, lawyers are seeking creative alternatives to incarceration, and law-makers are recognizing the need for less punitive sanctions for non-violent offenders to reduce prison overcrowding. Now the USSC is inching toward revision of the fraud guidelines. This changes everything.
Judges are required to consider mitigating facts about the offense and mitigating facts about the offender. Suddenly, the focus has shifted from multiple meetings with the AUSA hammering out guideline calculations to plea agreements that allow for considerations for an offender’s health or family circumstances and an opportunity to request a sentence much lower than the guideline range.
With less than five percent of the world’s population but nearly 25 percent of the world’s prisoners, the U.S. continues to rank first among nations in both prison and jail population and per capita rates. With proposed legislation to reduce prison overcrowding and create alternatives for non-violent offenders, defense attorneys must seize this opportunity.
More than ever before, defense attorneys should expose all of the mitigating aspects of the offense with their arguments well supported by case law involving similar conduct. They should take the opportunity to get to know their client on a personal level and spend one to two full days interviewing them about their background. During this process, they will be looking for the most compelling issues and decide which collateral contacts to interview to support these issues. They are then in a position to determine what types of evaluations and documentation is needed to support these mitigating issues. Next, it is important to obtain character letters from the most relevant sources who can provide detailed examples of the client’s character. Crafting the perfect character letter is critical and warrants a whole separate discussion! Putting together the perfect package for sentencing is my passion.
I have been very fortunate to have stood alongside some of the best attorneys in the country, working together to provide the Court with the best options to impose a sentence that makes sense and is not greater than necessary.