For the Defense - Vol. 6, Issue 4 - 18

Sentencing Mitigation on a
Shoestring
s a sentencing mitigation specialist, and former
federal probation officer, I recognize the structural
and institutional limitations that prevent effective
mitigation in many state court cases. This article is intended
to aid in dealing with these limitations, acknowledging
that we exist in a criminal justice system that still includes
the acceptance, even in some places, the necessity, of
" meet em and plead em " representation.1
A
Apart from death penalty litigation, sentencing
mitigation in state court is constrained by limits on
time and money. Defense attorneys in state court often
manage enormous caseloads and face pressure to move
cases quickly. Often, the judge is a rubber stamp on a
plea deal and the mitigation arguments are made to
the prosecutor. There are two basic goals of effective
sentencing mitigation: humanize the client so that the
prosecutor and the Judge see him as a person capable of
rehabilitation, and, if possible, provide an alternative to
incarceration that can lead there. Sentencing mitigation
requires proper interviewing, verifying and storytelling.
The following suggestions require time and effort but
can be abbreviated or expanded as resources permit.
18 For The Defense l Vol. 6, Issue 4
Tess Lopez
First, can you hire a sentencing mitigation specialist or an
experienced social history investigator to do the legwork?
Is it possible, if you are court-appointed, to seek the help
of the court in paying for this help? Strategically, a motion
for payment of a mitigation professional provides an early
opportunity as it may be a first step in the sentencing
judge's education about your client's issues and needs.
Find family or friends to help. If you cannot hire an
investigator or mitigation expert, all is not lost. One of
the most helpful strategies that I have developed in my
practice when time and money are short is to find family
members or friends who are willing to help. For many
criminal defense attorneys, these family members are the
first point of contact with the client and are an overlooked
resource in building a helpful social history.
For example, one of my clients was charged in a major
cocaine distribution conspiracy. He held a graduate
degree in special education and his previous employment
was working with 4th and 5th grade students who were
acting out physically by being assaultive. He was very well
respected by teachers and students. But he never revealed
important facts about his life to his lawyers. During the

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
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