Sentencing Consultants: Balancing the Scales of Justice

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In an era of plea bargaining where prosecutors exercise significant discretion and probation officers, who are also police officers, wield substantial influence in the sentencing process the burden of balancing the scales of justice falls upon the defense bar.  In federal and state court, prosecutors have virtually taken over the sentencing process by manipulating the number of counts filed and then introducing additional evidence at the time of sentencing to increase the actual sentence imposed.

There are two fundamental rights associated with sentencing, due process and the right to (effective) assistance of counsel.  This paper will explore the nuances of sentencing and identify meaningful alternatives to the “business as usual” mentality which plagues the criminal justice system, especially in sentencing.

One of the collateral consequences of plea agreements is that judges have little insight or firsthand experience with the underlying facts of a case and therefore rely almost entirely on information presented by probation officers following a presentence investigation.  The decision to grant probation, impose jail, or commit to prison “involves considering intangibles of character, personality[,] and attitude, of which the cold record gives little inkling[1].”

The judge becomes dependant on the prosecutor to identify aggravating circumstances which in turn are substantiated by the probation officer in the presentence investigation.  In this context, law enforcement is the primary source of information and probation officers have direct, unfettered, access to the judge.  These ex parte communication privileges are not available to the defense.

The services of “mitigation” experts (sentencing consultants) have routinely been engaged in capital cases.  The ethical standards of practice and case law require defense counsel to obtain the services of persons independent of the government to identify mitigating considerations.  The American Bar Association Guidelines provide that these investigations “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”

The incorporation of sentencing consultants as members of the defense team in non-capital cases is a viable solution to inherent systemic deficiencies.  The scales of justice have been corrupted by governmental interests and have allowed prosecutors and probation officers to exert undue influence by manipulating the flow of information.

The systematic erosion of basic fundamental rights such as due process and the right to effective counsel is an unintended consequence of political expediency and budgetary constraints.

DUE PROCESS

Sentencing practices; as defined by statute, judicial rules, and case law require criminal proceedings to be conducted in a manner that insures the judge has accurate and “reasonably reliable” information when exercising discretion in imposing a sentence.   Due process, as guaranteed by both the United States and Utah Constitutions, are applicable to sentencing to enforce procedural fairness.[2]

Quoting the Federal Sentencing Reporter (January 2006) “The core procedural goals of any sentencing system must be fairness and accuracy. When years of confinement ride on the court’s factual findings, a high degree of confidence must attach to these findings. Basic notions of fundamental fairness, due process, and sound policy require that the facts are reliably found and that fact-finding procedures are consistent among sentencing courts.”

The current practice of relying solely upon the presentence report prepared by probation officers closely aligned with the prosecution is fraught with opportunity for disparity and incomplete information.  Increased demands for service and scarcity of resources have negatively impacted the quality and thoroughness of state produced sentencing reports.

Although it would not be reasonable to require such in-depth analysis or research for each non-capital case, it is not unreasonable to apply the general principles of mitigation to other cases as a protective measure and counter-weight for state sponsored sentencing reports.

In Utah, for example, the statutory and rule provisions applicable to sentencing are: UCA §77-18-1(7) “the court shall receive any testimony, evidence, or information the defendantdesires to present concerning the appropriate sentence;” and Rule 22 of the Rules of Criminal Procedure states, “the court shall afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment.”  Clearly these referenced sections allow for sentencing consultants to conduct investigations and provide reports to the court.

Such investigations could explore such factors as: medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.  Theoretically, these issues are addressed in the presentence report; but they are frequently neglected or excised from sentencing reports as a matter of expediency.  They are also the factors most likely to positively influence the judge.

“The State has the burden of proof as to the existence of aggravating factors and must show that they ‘outweigh’ the mitigating factors.[3]”  It follows, therefore, that defense counsel has the burden of proof as to the existence of mitigating factors.  This is exemplified in Valdez[4] “[w]e caution that, in the future, counsel would be wise to alert the court to factors that counsel believes the court has not adequately considered.”

The Wood[5] case offered the following guidance for handling aggravating and mitigating factors in determining an appropriate sentence:  “a sentencing authority must compare the totality of the mitigating against the totality of the aggravating factors, not in terms of the relative numbers of the aggravating and the mitigating factors, but in terms of their respective substantiality and persuasiveness.” In other words, the judge must decide how compelling or persuasive the mitigating factors are when contrasted with the aggravating factors.  Consequently, it is imperative that the court be fully informed of all relevant mitigating considerations.

Probation officers provide a wide assortment of services for the courts, including the preparation of presentence reports.  They perform “executive-type function[s][6]” for sentencing authorities and higher courts have been reluctant to restrict or discourage ex parte communication between probation officers and judges.  This is predicated on the importance of sentencing courts having accurate, reliable information, for sentencing and the reliance upon probation officers to provide that information.[7] The consequences of relying primarily upon law enforcement to identify and articulate mitigating considerations in the presentence report are directly tied to the sentence imposed.

Fairness and due process, in this context, have been sacrificed for the “perception” of accuracy.  Currently, neither the prosecution nor the probation officer is required to disclose the evidence it intends to rely on to support aggravating factors.  At best, defense counsel receives a copy of the presentence report days before sentencing.  But even when reports are received within established time frames it is not always feasible to review them for accuracy or develop compelling evidence of mitigating considerations in time for sentencing.

Preparing for sentencing should be undertaken with the same rigor as preparations for trial.  It is never too early to employ the services of a sentencing consultant.  The services provided by defense counsel and the consultant are complimentary and the functions of each can be used throughout the proceedings, including pretrial and trial preparations.

As a practical matter, there is still a high degree of “sentencing by ambush” especially where information is not provided by the government in a timely manner.  “Fundamental principles of procedural fairness in sentencing require that a defendant have the right to examine and challenge the accuracy and reliability of the factual information upon which his sentence is based.[8]

For example, the United States Supreme Court has long held that constitutionally invalid convictions cannot be used to enhance later criminal acts or guidelines.  However, probation officers rarely do more than recite historical arrest information and are not trained to ask defendants whether they were represented by counsel.  In Tucker[9] the United States Supreme Court found this to be “misinformation of constitutional magnitude.”

Prior convictions are considered a primary aggravating factor, especially if the behavior is closely related to the case at hand.  As a result, neither the prosecutor nor probation officer is motivated to identify the discrepancy or bring it to the attention of defense counsel.  It is also possible the unconstitutional conviction has a direct bearing on the present case, such as a felony DUI that was enhanced based upon a misdemeanor conviction where the defendant was deprived of counsel.

Consequently, the court’s reliance upon probation officers to provide the “most accurate and reliable information possible” is misplaced.  Despite repeated occurrences of inaccurate reports, judges continue to place undue trust with probation officers who are intent on pleasing the prosecutor and allied law enforcement objectives in the delivery of justice.

Aside from defense objections at the time of sentencing, defendants have limited appeal recourse when “misinformation of constitutional magnitude” is relied upon.  In an era of sentencing enhancements there appears to be a general reluctance to explore the constitutionality of prior convictions.

RIGHT TO (EFFECTIVE) ASSISTANCE OF COUNSEL

These are profound implications for the defendant (incarceration in jail or prison) if the judge relies upon inaccurate or misleading information from law enforcement and the prosecution.   There are implications for defense counsel as well.  Especially if they were not properly prepared for sentencing and failed to object to inaccurate or misleading information in the presentence report.  The Sixth Amendment of the United States Constitution provides a standard of “reasonable competence” for defense counsel, failure to meet this standard may result in a bar complaint or appeal alleging ineffectiveness of counsel.

In Rompilla[10] the Supreme Court held “that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.”

Sentencing is a critical stage of a criminal proceeding and defendants are entitled to the effective assistance of counsel.  State and federal courts have long held that this includes the opportunity for defense counsel and the defendant “to make a statement and provide information in mitigation of sentence[11].

“[T]rial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing[12].”  Likewise, there is no doubt that information developed in conjunction with a sentencing investigation conducted by a professional consultant must be reviewed and duly considered by the judge.

The best possible outcome is more likely to be achieved if the key system participants come to view the defendant in human terms and in context with their daily life.  In other words, they see you as a man or woman with parents, siblings, spouse or significant other, children, friends, and employer (or employees).  Key participants include the judge, prosecutor, and probation officer.  If the services of a sentencing consultant are engaged early enough in the process, it is possible to influence plea negotiations and the state produced presentence report.

The decision to employ a sentencing consultant to prepare an alternative sentencing report will insure you achieve the best possible outcome.

CONCLUSIONS

Until the defense bar consistently provides accurate and reliable information the ex parte communications between probation officers and judges will continue.  There is a substantial opportunity for defense attorneys to highlight a fundamental problem within the system regarding the near exclusive reliance upon law enforcement, in the guise of probation officers, as the sole source of “accurate and reasonably reliable” information.

Defense attorneys are encouraged to explore the possibility of engaging the services of a sentencing consultant to protect their clients due process rights by compensating for systemic bias and the over utilization of law enforcement as a primary source of information.  The requirement to solicit non-government service providers in capital cases to investigate mitigating factors is just as applicable to non-capital cases, albeit in a more limited scope.

Expanding the use of sentencing consultants to include non-capital cases will assist defense attorneys in thoroughly preparing for sentencing and compensate for the undue influence exerted by prosecutors and probation officers as part of an incarceration prone, punitive, system.    The effective assistance of counsel provided by the majority of criminal defense attorneys can be augmented with the inclusion of a sentencing consultant as a member of the defense team.

Collateral benefits for defense counsel include: best possible outcome for the client, fewer bar complaints, and enhanced reputation.  Possible benefits for the defendant include: fewer punitive sanctions (including incarceration), sanctions actually related to defendant’s needs, respect (treated as an individual), and personal change opportunities.


[1] State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 1991)

[2] Refer to: State v. Johnson, 856 P.2d 1064, 1071 (Utah 1993); State v. Howell, 707 P.2d 115, 118 (Utah 1985); State v. Lipsky, 608 P.2d 1241, 1248 (Utah 1980); State v. Bell, 754 P.2d 55, 58 (Utah 1988); State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982); State v. Gomez, 887 P. 2d 853 – (Utah 1994)

[3] State v. Pierre, 572 P.2d at 1347-48 (Utah 1977)

[4] State v. Valdez, 194 P. 3d 195 – (Utah: Court of Appeals 2008)

[5] State v. Wood, 648 P.2d 71 (Utah 1981) (per curiam)

[6] State v. Hanson, 627 P.2d 53, 55 (Utah 1981

[7] State v. Gomez, 887 P. 2d 853 – (Utah 1994)

[8] State v. Lipsky, 608 P.2d 1241, 1242 (Utah 1980; State v. Hanson, 627 P.2d 53, 55 (Utah 1981); State v. Anderson, 632 P.2d 877, 878 (Utah 1981)

[9] United States v. Tucker, 404 US 443 – (1972)

[10] Rompilla v. Beard, 545 US 374 – (2005)

[11] State v. Wanosik, 79 P. 3d 937 – (Utah 2003)

[12] Green v. United States, 365 US 301 – (1961)