Dear Judge: The Importance of Sentencing Letters

A package arrives in the mail at the law office. It’s a folder filled with papers sent from a client on bond. I open the folder to find letters, some typed and printed, but a few handwritten on lined paper, not formally addressed or formatted in the style of an official letter. I pick up one of the handwritten ones, and begin to read. The child-like handwriting clues me in to the fact that this must have been written by one of my client’s kids. It’s short, only a paragraph. In it, the child writes about how much she loves her mom—she’s a good mom, please don’t take her away from me for long, we need her. Then I get to the bottom of the letter and see the name. It’s from my client’s youngest—an 8 year old girl.

Criminal defense attorneys hate having to use this phrase, but a big part of our job is humanizing our clients. Not because they aren’t already human and we have to turn them into one, but because society—and the legal system—automatically assumes that they are less than human. Prosecutors routinely refuse to call accused people by their names, referring to them as “the defendant.” Many times I’ve emailed prosecutors inquiring about a client, and the prosecutor replies, “which case is this one?” and won’t remember until I give them a case number for them to look up. Jurors look at the accused and, whether unconsciously or not, assume the worst because, why would the government charge an innocent person? Judges see thousands of accused people every year and, through no fault of their own, don’t have every person’s history memorized. News viewers see a mugshot, not a third grade yearbook photo.

Yet despite the presumption of innocence and the constitutional amendments aimed at the rights of the accused, criminal defense attorneys have very few tools at their disposal to demonstrate to the judge, jury, or prosecutor that an accused person is a human being worthy of fairness and dignity. These tools are even more limited when a person has pleaded guilty or been convicted at trial. Because if society wasn’t against them before, now society can say, “but they’re guilty! Dignity be damned!”

But as every criminal defense attorney knows, an accused person is more than an indictment or a verdict form. Setting aside the disturbing truth that innocent people are convicted (and yes, plead guilty) all the time, the human condition is complex. Every person who comes before the court was born somewhere, raised somewhere, went to school somewhere; they had hobbies, favorite foods, a sense of humor; they watched their parents or family members go through life; they went through breakups or worked a job they hated; they’ve laughed, cried, screamed, loved, struggled, and hoped just like everyone else. Somewhere along the way they may have made a decision that led them to where they are. But they are not less than human for doing so.

The problem at sentencing is, the judge doesn’t know anything about the accused other than what is on the docket. And what is on the docket paints a very, very bad picture. The picture is bad mostly because it is one-sided, as it is filled with accusations and narratives drafted by the prosecution for the purpose of getting a high sentence. It’s bad because it’s incomplete. Luckily, the defense attorney has a tool at his or her disposal to complete the picture. Its name and procedure varies in each state depending on the statute, but for purposes of uniformity, we’ll use the federal statute: 18 U.S.C. 3553(a).

Federal sentencing has two phases: the guideline calculation phase, and the downward variance phase. During the guideline calculation phase, the attorneys and judge refer to the Sentencing Guidelines Manual, a big book that goes through every category of crime and assigns a numerical score to a variety of circumstances. For example, the crime might start the accused off at a level 8, but if they accepted responsibility by pleading guilty, they could get 2-3 levels off. If they were a leader of the conspiracy they could get +4. If they used a special skill to commit the crime, they could get +2. The more money or drugs involved, the higher the score. At the end, the judge takes the numerical score and cross-references it with the chart at the back of the book, which shows a guideline range in months by criminal history category (category I being the lowest criminal history).

Before the sentencing hearing, the US Probation Office writes a Presentence Investigation Report, a document that generally describes the accused (work history, family history, etc.) and provides a guideline calculation. Unfortunately, the guideline range almost always comes out harsh. Then, the government relies on Probation’s estimation and argues for a sentence either within or above the guideline range.

First, the defense attorney argues that the guideline range was calculated incorrectly, and tries to get the guideline range as low as possible. If that fails, the defense then argues for a downward variance—a sentence below the guideline range—pursuant to section 3553(a).

18 U.S.C. 3553(a) provides that the sentencing judge is to consider a person’s "history and characteristics.” But how can a judge possibly consider a person’s history and characteristics without hearing from the people who know the person best? The people who write sentencing letters know the accused better than the prosecutor, the judge, and even the defense attorney. They were there for the traumatic events, the celebrations, and the difficult conversations. They know the good and the bad, and they’re writing letters of support anyway. That alone says something about the complexity of our choices and character.

We defense attorneys find support letters to be invaluable when preparing for sentencing. The defense attorney will prepare a Sentencing Memorandum In Support of a Downward Variance ahead of the sentencing hearing, and in it will often quote from the support letters.

So, if you would like to write a support letter for someone you know and care about, rest assured that doing so is not only within the law, it is immensely helpful for the sentencing judge. Below is a quick Do's and Don't guide* to doing so:

DO: Reach out to the defense attorney stating that you would like to provide a letter of support.

DO NOT: Write a letter directly to a judge. The letters are compiled into one filing and provided by the attorney.

DO: Explain how you know the individual and how long you've known them. Give a description of the individual's character—what they mean to you, your family, and the community.

DO NOT: Try to excuse the individual's conduct, blame the prosecutor, or blame law enforcement. The purpose of the letter is to explain the individual's character.

DO: Use stories. The best letters will explain a situation where the writer was impacted by the individual's good deeds or thoughtfulness.

DO NOT: Ask for a specific sentence. Leave that to the attorney.

*This information is for education purposes only. It does not constitute legal advice and should not be construed as such.