While the more scholarly parse the words of  Gall and  Kimbrough for hidden meanings and secret tests far better than I can, the bottom line for the practicing lawyer is that the ball is now in our court to make good use of this new-found opportunity to better serve our clients.

Prior to Booker, the bulk of the criminal defense lawyers’ effort was directed toward arguing where, in the narrow window of the Guidelines range, our client would be sentenced.  Sure, there were times when we were able to argue for a downward departure, whether because of a specific unusual circumstance or a Koons Heartland approach, but this was the exception, and even then a stretch most of the time.  The occasional Fatico hearing was worth the risk, but this too was a major exception.  Our fight was limited to the bottom of the range, and that was the best we could hope for.

At least for the moment, things have now changed.  The pre-sentence machinery, that had ground to a virtual halt back in 1987 when the Guidelines were finally upheld, needs to be retooled to address the potential to convince a sentencing judge that, while the mandatory minimums can’t be ignored, everything else is fair play.

The use of pre-sentence memoranda is suddenly back.  Not the typical letters that were sent to the judge explaining what a great guy the defendant is, or how painful this will be to his family and friends.  Not the handful of letters from the usual suspects about the defendant’s kindness and generosity.  That stuff never persuaded anybody before, and it’s certainly not going to get you a sentencing victory now.  The one thing that the Supreme Court decisions made clear, at least to me, is that you need to give the court some hard ammunition if you want to achieve a significant reduction off the guidelines.

In the past, when the opportunity presented itself, I have put together major pre-sentence memoranda that served to chronicle the life of a defendant, from its start to the day of sentence.  These memos can be a huge undertaking, requiring hours of interviews and as much writing as an appellate brief.  But they serve to provide a sentencing court with a full understanding of the human being whose life they are about to decide.  It humanizes the defendant far beyond anything we can say.  It explains the path that landed them in court.  It shows the full dimension of their life, that they did good things and had people who loved them, as well as the problems and shortcomings that created the person before the court.

This is not a simple endeavor.  It’s very time-consuming, and can be quite expensive.  It will almost always involve some sort of medical or psychological testing and assessment, with a report that explains its impact on the defendant’s life, decision-making, impulse control, etc. 

Then there are the letters of support.  These can either be enormously helpful, or a total waste of time.  It’s up to the lawyer to explain and direct the letter writers to prepare meaningful letters providing hard information that will have an impact on the judge.  Telling the defendant to get some letters together is generally a waste of time and effort.  A letter from the church pastor about how the defendant comes to church every Sunday is useless, yet this is what most defendants think they should provide.  In their minds, this is an important person who might sway the judge.  To the judge, this is a form letter that brings no information to the table. 

Prepare instructions for the defendant to give to his letter writers, telling them to state how they know the defendant and for how long.  Tell them to provide specific actual experiences to support their assertion that the defendant is a good person.  They must include a name and address on the letter, as well as write legibly or, better yet, type the letter.  They have to sign it.  And critically, they should not argue that the defendant is innocent.  He’s being sentenced, so that horse has left the barn.  Instead, ask for consideration of the good the defendant has done or the troubles he has faced.

The letter and medical/psychological report then have to be integrated into the body of the memorandum.  Use of quotes to support your arguments are extremely helpful.  This means, of course, that you need the letters and reports before you prepare the memo, so that all pieces create a positive synergy that culminates in a report that is stronger than its individual pieces. 

The memo needs to proceed to focus on the legitimate sentencing factors, meaning that you follow the statutory criteria,18 USC 3553(a) and caselaw considerations.  Apply your arguments directly to the factors that the court needs to justify a lower sentence than the guidelines would dictate, and that will give the court a basis to explain its decision for purposes of appellate review. 

As both Gall and Kimbrough make clear, the district judge must still be able to provide an explanation for the sentence imposed, with the guidelines as the baseline consideration.  If you fail to provide hard reasoning for the deviation from the guidelines your seeking, your giving the judge nothing to work with and exposing her to reversal.  She knows this, and so must you. 

The window of opportunity is now open.  It’s up to criminal defense lawyers to now fulfill their responsibility by using the opportunity created by these decisions to its fullest.  Since sentence may be the most important battle one fights in federal court, there is no excuse for not putting in the degree of effort and attention that it deserves.

Addendum:  I’ve already received an email asking what I think of sentencing mitigation specialists.  I am not a big fan.  Their approach tends to be formulaic and superficial, focusing on the issues that they are competent to address (for example, where the specialist is a psychologist, it’s all about the psychology of the defendant and there’s little mention of anything else).  Doing the job right is addressing the entire person, not just the limited perspective of a single specialty.

Judges have read these reports before and like any repetitive submissions, they lose their impact over time.  In my opinion, it is critical that each pre-sentence memo be sui generis if it’s going to serve it’s purpose.  If the judge doesn’t bother to read it, then there’s no purpose in submitting it.