Going To Prison? -- Tips From A New York Criminal Defense Lawyer
What Comes After A Guilty Verdict?
Every year, about one million Americans plead guilty to a felony or are convicted of one after trial. The next step for those unfortunate enough to be in this position is to go before the court for sentencing.
Sometimes the sentence will be determined in advance, either through a binding plea bargain or because a particular sentence is mandated by law. More often, however, a range of sentencing options will be open to the court. In this case, sentencing can be the most critical part of the criminal proceeding, because it will determine whether you go to prison, how long you will spend there if so, and what restrictions you might face after being released. Moreover, facts found by the court at sentencing can often affect prison assignments, conditions of confinement, and eligibility for work release or halfway house programs. It's important to get sentencing right.
If you're facing sentence, most of the details will be taken care of by your defense attorney.There's one item of preparation, however, that will often be left to you: assembling letters from friends, family and colleagues to present to the judge.
Many people approach this task haphazardly, by contacting everyone they know and asking for expressions of support. As with most things, though, a haphazard approach isn't the most effective one. In order to get the most out of family and community support, it's necessary to choose your supporters carefully and ensure that the court will be interested in what they have to say.
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Make It Personal
The first rule of sentencing letter campaigns is that less is often more. Going into court with no support can hurt you, as recently happened to Bernie Madoff, but you'll hit diminishing returns very quickly and max out soon after. No judge is going to read 1000 letters, and as a practical matter, 100 repetitive or impersonal letters will count for less than ten well-written and incisive ones. Judges don't sentence by majority vote, so quality is far more important than quantity.
Form letters are a bad idea. If you send a judge fifty letters saying "I've known Mr. Smith for years and he's a great guy," they'll count as one letter. The court doesn't need to be told the same thing more than once. Moreover, if a court is deluged with form letters, then it might miss the ones that portray you as an individual and shed light on you as a person.
It's also not usually a good idea to submit letters from people who don't know you well. The judge won't be impressed by the fact that some congressman or CEO knows your name. What he or she is looking for is insight into your background and character, the reasons why you went astray, and your prospects for the future. Only those close to you can provide this information.
There are exceptions to every rule, and it may sometimes be important to submit letters from people who aren't well acquainted with you. For instance, there may be someone who doesn't know you intimately, but who knows and understands the conditions that led to you committing the crime. Other people may know a great deal about particular things you have done - charitable works, for example - even if they're not familiar with other aspects of your life. Or a doctor may know of particular physical or mental illnesses that might mitigate the offense. Overall, however, it's best to look to those closest to you for support, and to eschew those who can provide only the glitter of their names.
At the same time, some people may be entirely too close to you. Here, I'm thinking primarily of letters from children. In my experience as a Federal and New York criminal defense attorney, I've actually seen people submit letters from their elementary-school-age sons and daughters saying "please don't put my daddy in jail."
If that seems tempting to you, don't do it. Judges are more likely to look on such letters with revulsion than sympathy, because it will appear that you're exploiting your family. Letters from teenage children or adult family members are one thing, because they can understand what's happening and make their own choice to express themselves to the court. Submissions from young children, who can't fully comprehend what's going on, are another thing entirely. Let your lawyer, and the adults in your family, talk about your young children and how much they need you. Don't let the judge think you're using them.
Another form of exploitation to avoid is lying. If you ask someone to write you a sentencing letter, make sure he or she knows exactly what you're being sentenced for. Not only will this make their letters to the court more effective, but it will also give their support the ring of truth. It should go without saying that if one of your supporters appears to have been duped into writing a letter, the judge will count that against you rather than in your favor.
Look To The Law
Once you've chosen who will write the letters and fully informed them of your circumstances, the next step is to discuss content. The exact words, of course, should be theirs. If you (or, worse yet, your lawyer) write the letters, then they will ring false and will likely count for little with the court. Let those who know you speak for themselves. However, you should spend some time discussing the _topics_ they will cover.
In most jurisdictions, there are statutes or case law that define the purposes of sentencing. These are the factors that the judge will take into consideration when deciding what sentence to give you. Thus, you want to make sure that the letters speak to these factors. You don't want to waste valuable support by giving the court information that isn't relevant to the issues before it. It's best, instead, to become familiar with the legal factors that go into sentencing and make sure that your supporters discuss these factors insofar as they are able.
As an example, consider Federal sentencing. In Federal court, the factors to be considered in passing sentence are set forth in Title 18, Section 3553(a) of the United States Code. These factors include the following:
* the nature and circumstances of the offense and the history and characteristics of the defendant;
* the need for the sentence imposed (a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (b) to afford adequate deterrence to criminal conduct; (c) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and
* the kinds of sentences available.
There are other factors listed in the statute as well, but these will be of primary interest to your attorney.
Most sentencing letters focus on "the history and characteristics of the defendant," and this factor indeed provides plenty of room for your supporters to tell the judge about your history of good works, steady employment and devotion to your family. But letters can cast light on the other factors as well. If possible, let your supporters explain to the court why you won't be a danger to the public in the future, why the offense might not be as serious as the prosecutor is trying to paint it, why your rehabilitative needs can best be accommodated outside prison, or what alternatives to imprisonment are available that will provide you with proper supervision and guidance. Choose supporters who can tell the court about your future as well as your past, and who can fit the story of the offense within your personal story.
If you're being sentenced in state court, you will want to consult the laws of your particular state, and of course you will also want to coordinate any letter-writing campaign with your attorney. However, many of the factors are likely to be the same, and so is the basic principle: tell the court what it needs to know, not simply how much your family and friends like you.
It's Not Just Prison
Another issue to consider is that staying out of jail (or at least minimizing your term of incarceration) is only one of your goals. Many offenders are sentenced to terms of parole or supervised release after leaving prison, or are given probation in lieu of a prison term. The court can impose restrictions during these periods of release. For instance, depending on the crime for which you are sentenced, the court can require you to get permission to travel, prohibit you from working in certain jobs, limit the places where you can live, or restrict your use of the Internet. Alternatively, the court can _waive_ conditions that may otherwise be imposed - for example, it can issue an order permitting you to leave the county, state or country without the permission of your probation officer even if other probationers might require such permission.
These conditions are often determined at the time of sentencing, and your supporters may be able to influence whether and to what extent they are imposed. If your lawyer informs you that certain restrictions are being sought or that conditions of release are otherwise at issue, then you may want to talk to your friends and colleagues about how they can address these conditions. Let your supporters tell the court about your business is at a critical stage of growth and how you need to travel in order to keep your employees working. Let them inform the judge that you have been accepted to college and that you need to use the internet in order to keep up with your lessons and break the cycle of poverty. When they talk about you as a person, let them give the court the facts it needs to see why severe restrictions aren't appropriate for you.
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Letters Aren't Everything
Family and friends can also help you in other ways. In many jurisdictions, it is mandatory for the probation department or other local criminal justice agency to prepare a pre-sentence report. In Federal court, for instance, such reports are drafted after every conviction, and are critically important in determining your sentence. Some judges, in fact, look no farther. Depending on the facts of your case and the approval of your attorney, you may want to ensure that the information your friends and family can give makes it _into_ the pre-sentence report, by making them available to the probation department for interviews. It isn't unheard-of for Federal probation officers to recommend lenient treatment if given a good reason, and if the probation department is on your side, half the sentencing battle is already won.
Finally, your friends and family can help simply by being there - and by that, I don't just mean sitting in the gallery on the day the judge pronounces sentence. A criminal conviction and sentence is one of the toughest challenges any person can face, and many people do so alone. If you have loved ones to support you and help you through it all, then you have something valuable, no matter what the judge does. Be glad that the people close to you are there in your hour of need.
DISCLAIMER: This is not personal legal advice and does not create an attorney/client relationship between the author and the reader. Be sure to consult your lawyer before taking any action relating to your case.
This hub was written by my husband, Jonathan Edelstein, who is a New York criminal lawyer.