The Return to Normalcy

For me, preparing for a Federal criminal sentencing is pure torture. My palms get sweaty. I struggle with how to present this person in the best light possible in a sentencing memorandum to a judge who will determine my client’s fate. I’ve been doing this for more than 50 years. You would think it would be easy. It’s not.

You see, what I know is a Federal Judge deciding your fate may only see you once – at the time of sentencing – or, if you are lucky, before that when you plead. I know that the judge will be deluged with a ton of paper – a plea agreement, a stipulation, A Pre-Sentence Report, objections to the report, the Government’s Sentencing Memorandum – much of it single spaced and dense. And your lawyer’s sentencing memo. And from perhaps a single brief appearance, the judge will know only some of who you are. You appear at sentencing frightened, read from a prepared script hoping to influence the decision on your fate that will be made within an hour. I know – we all know – even without three years of law school but now reinforced with our recent affliction and addiction to Zoom and Teams transmissions, that it’s the face-to-face, in-person interaction that best conveys who you are. That makes a big, big difference. And, as a defense lawyer, I know that trying to effectively convey who you are on paper is a scrivener’s Everest without the Sherpa guides. As Red Smith said, “Writing is easy. All you have to do is sit down at a typewriter, open a vein, and bleed.” And when you’re doing it to protect a client, there’s a lot of bleeding.

The goal of a sentencing memo is to get the judge to a point where he or she can say to the client, as Judge Cabranes regularly did when sitting on the District Court, “This single act does not define you as a bad person. There is more to you than that. You will not be judged on this act alone.” I want to make the judge view my client from the Oscar Wilde perspective: “Every saint has a past. Every sinner has a future.” How to get there is a gut-wrenching challenge.

For me, writing is hard. It takes forever to say what should be said; to “know” – or more properly, to “gauge” – the reader. Legal analysis is not my strength; nor is research; nor the presentation of concise, cogent, persuasive legal arguments. And if that is what it takes for this client with this judge, I may not be able to deliver what’s necessary. The pressure increases. And you’re in Court song and dance may well be too little, too late.

So that’s why it’s hard.

But as hard as it is, now that sentencing Guidelines are non-binding recommendations it’s better than it was. In the decade and a half that followed adoption of mandatory Guidelines, defendants, their lawyers and judges were in legal straitjackets of The Sentencing Guidelines. The goal was uniformity in sentencing; that similar defendants in both Texas and Connecticut charged with the same offense should end up with essentially the same sentence. Good luck. That goal was never reached. It was the biggest failure in the criminal justice system since the cataclysmically unsuccessful war on drugs.

Lawyers of my generation look back on those days with horror. Under binding guidelines, lawyers would attempt to negotiate a plea, trying to weave through, in and around numbered and alphabetized sections and subsections. It was a frustrating and even futile exercise. There were only two exit ramps off the Guidelines highway. One was to cooperate against your co-defendants and rat everybody out; or, if you were really lucky, you could devise a claim that the Guidelines had omitted consideration of the combination of facts and circumstances unique to your case. Outside of that, it was pretty much game over.

To the everyday criminal defense lawyer living throughout the Guidelines era was incredibly demoralizing. The first reaction of the defense bar to enactment was non-productive wailing and foot stomping. The word “draconian” became an overused daily descriptive of the lawyers’ glossary. Clients were crushed. Judges had to impose sentences they couldn’t live with. (In fact, a number resigned, unwilling to impose required sentences). In Connecticut our judges early on found the Guidelines unconstitutional in a case called United States v. Molina, 688 F. Supp. 818 (D. Conn. 1988) quickly mooted out by a Supreme Court ruling, United States v. Mistretta, 488 U.S. 361 (1989).

The clients were, of course, the biggest losers. But that’s the lawyers and judges. Defense lawyers first attempted to explain the inexplicable mix and match guideline circuitry to uncomprehending clients. Then, at sentencing, bewildered clients listened as judges and lawyers engaged in a colloquy of Guideline subsections of letters and numbers that sounded like a Bingo game in St. Theresa’s Church Hall. And in the end, the lawyer had to explain to the client what had happened.

Looking back on those days is chilling. So, as demanding as it is now, we have returned to the pre-Guideline era where judges can freely evaluate the person; consider in context what they have done; consider its effect on safety of the community; consider whether any particular sentence will be a deterrence; and, ultimately, how to impose a sentence that gives confidence to all that the law is being administered fairly. Ironically, this – without the mandatory and binding requirement – is exactly what the statute underlying the creation of the Guidelines required the weight given to each criterion is left to the judge.

To an extent, then, we have returned, thankfully, to a sentencing philosophy that was best articulated by the late Judge Robert Zampano. Judge Zampano used to refer to the bank of life. He would tell a defendant that as we go through life, the manner in which we conduct ourselves allows us to make deposits into the bank of life. And, when we stumble or fall to come into Court having engaged in some type of illegal conduct, we are to given credit for those deposits that we made into that bank. And in Judge Zampano’s world it’s the obligation of the judge to consider those deposits in imposing a fair sentence. So as hard as it is now to try to represent a client on paper to a pleading-deluged judge, defense lawyers welcome that opportunity.

The bank of life is still open for business.