INFLUENCING THE COURT

Third-party letters to the court, often referred to as “reference” or “character” letters, have the potential to influence the court and have an impact on sentencing.  Also known as a collateral contact letter, each letter should be provided to the court in advance of sentencing.  This is a unique opportunity for the criminal defendant to exert some influence over the outcome of their case.

Unfortunately, in several recent cases I have seen letters that were written with the best of intentions that did more harm than good.  As a result I put together this collateral contact letter guide for criminal defendants who are motivated to do all they can to obtain the best possible sentencing outcome.

Generally speaking, judges review (notice I did not say “read”) each letter that is submitted to them.  Depending on the author’s relationship to defendant some letters are more easily dismissed or discounted than others.   This guide provides structure and tips for achieving the maximum amount of positive influence from letters submitted to the court.

WHO SHOULD WRITE LETTERS

Family members, especially parents and spouses, are likely to be ignored.  Because they tend to be the least objective there is also the possibility for an exception.  Such as when there are long-term medical, psychological problems, or other broad family issues AND the author contrasts the defendant’s behavior before and after the criminal episode (and any treatment intervention or other significant life event that occurred between the commission of the offense and sentencing).

Caution should be exercised with the “religion card,” particularly in Utah with the predominant religion.  If the defendant truly has a personal relationship with the ecclesiastical leader then such a letter can be beneficial, BUT judges tend to be skeptical of “new found” religious conversion at the hands of the justice system.

It is counterproductive and a waste of the judge’s time to submit letters from people who have little or no personal experience of the accused.  The primary purpose of these letters is to provide the judge with a human perspective of the defendant from the people who are in his or her life.  This is not accomplished by submitting letters just for the sake of submitting letters.

A letter written by a well-known, respected, or prominent individual from the community may have name recognition but if the author has little or no personal experience of the defendant or is unable to articulate specific examples of how the defendant is demonstrating accountability and remorse, such a letter can do more harm than good.

A well written letter from an “unknown” person can be more persuasive than an impersonal letter from a celebrity.  Some, by virtue of their relationship with the defendant, inherently have significant credibility.  For example, a letter from the defendant’s employer can be very compelling; especially if the letter provides specific information about the job and the potential for continued or future employment.

If the defendant is, or has recently been, under the care of a physician or mental health provider then a letter from that professional may become a centerpiece of the case for mitigation.  Particularly in cases where there are chronic health considerations or if substantial steps have been taken toward rehabilitation (i.e., substance abuse or mental health treatment).  Similarly, information about medical needs and prescription medication for the defendant may have significant relevance in determining what, if any, period of incarceration is appropriate.

Some of the most compelling letters, however, are written by “unexpected” people.  In other words, people who typically don’t have positive things to say about someone.  Letters from these individuals can really stand out to the judge and distinguish the defendant from the others in court that day.  Examples of “unexpected” people include ex-spouses and former employers.

In rare cases, letters from the defendant’s young children can be very compelling – especially in situations where the child is able to articulate specific examples of how their parent is changing for the better (for example, “Since dad quit drinking he is home  more and helps me with my homework.”)

CONTENT OF LETTERS

BEWARE, whatever is contained in the letter(s) MAY BE USED AGAINST YOU.  It is imperative, therefore, that the defendant speak personally with each person he (or she) asks to write a letter AND demonstrate ACCOUNTABILITY.  When letters are submitted to the court proclaiming innocence or an unjust conviction then you can be assured these statements will be used against you.

The same can be said for letters that make false promises.  Personal statements and letters by the defendant that reflect his or her commitment to do (or not do) something must be heartfelt and followed up with action.  Similarly, letters written in support of the defendant should be from the author’s heart.  Do not attempt to “blow smoke” or manipulate the judge, chances are high that the judge has heard and/or seen it before.  Authenticity is demanded and authenticity is influential.

All letters should be written by the person signing the letter.  NEVER, ever, prepare a letter and ask someone else to sign it.  Letters that honestly reflect the personal experiences and views of the author tend to be received favorably.  Likewise, letters should be “owned” (written in first person) to accurately reflect the author’s experiences, both good and bad, of the defendant.  Contrast can be crucial, if the defendant behaved poorly then say so and then follow it up with how things are different now (see child example above).

No one is perfect; if they were then they would not be facing sentencing in a criminal court.  Context is important and is the sort of information sought after by judges as they formulate an appropriate sentence.  Letters submitted to the court can provide this context when they focus on the defendant and not the conduct.

With rare exception, the author of the letter should be aware of the defendant’s personal situation and the nature of the criminal charges.  They should never discount or minimize the unlawful conduct and NEVER, ever, BLAME the victim or circumstances for what the defendant did.   Without exception, the tone of the letter should be respectful and the message concise.

MAKING A DIFFERENCE

There are two primary purposes for writing a reference, or collateral contact, letter in advance of sentencing.  The first, which has already been discussed, is to portray the defendant in a human perspective.   The second is to demonstrate the type and level of support for the defendant in the community.

Community support is a crucial component of success.   To this end, letters should be supportive and include specific references to what (if any) support the author is willing to commit to.  For example, if the author is willing to hire the defendant or offer a place to live, this should be included in the letter.  Any conditions (such as sobriety or maintaining a job) that accompany the offer of support should also be clearly expressed.

Actions speak louder than words.  To have maximum (positive) impact on the sentencing outcome requires considerable action.  Whenever possible, letters of recommendation should provide specific examples of this action.  There is a wide gap between talking about doing something, like getting a job or going back to school, and actually doing it.  While it may be true that the defendant wants to go back to school (or be a better father or be sober), taking the action to do it speaks directly toward the individual level of commitment.

Be sincere and be authentic to maximize your impact on the sentencing outcome.  Here are a few more helpful tips:

GENERAL GUIDELINES

  • Letters should be typed and include proper grammar and punctuation (children’s letters are an exception to this rule)
  • With the exception of family and personal letters, all letters should be on letterhead
  • Letters should be addressed to the court (sentencing judge by name), defense counsel, or the sentencing consultant
  • Whenever possible, letters should be dated and signed by the author
  • Letters should be no more than two or three pages (one to two pages is preferable)
  • Identify your relationship with the defendant and how long you have known each other
  • Provide specific, yet brief, examples of the defendant’s character (that has been personally experienced) or the defendant’s reputation in the community (with specific examples)
  • Identify how you are willing to support/assist the defendant in the transition from custody to the community and/or any other activities (housing, employment, education, etc.)
  • DO NOT write generic letters and ask people to sign them
  • DO NOT submit multiple letters in the same font, on the same paper, or with the same sentence structure
  • DO NOT give copies of the letter to the court, prosecutor, or probation officer without them being reviewed by your attorney
  • DO make a copy of all letters for your records
  • DO get at least two or three letters to submit to your defense team and in most cases five to seven are preferable
  • DO review all letters with your attorney and/or sentencing consultant
  • DO provide copies of whatever letters you have received to the probation officer (after they have been reviewed) who will be preparing the presentence report (but know that they may or may not be included as attachments to the sentencing report)

About Me

Kim Harward is a sentencing consultant and owner of Utah Sentencing Consultants.   Kim is a member of UACDL and the National Alliance of Sentencing Advocates & Mitigation Specialists.  He is a former probation/parole supervisor for the Utah Department of Corrections who specializes in defense-based sentencing reports and post-conviction relief strategies.  Kim can be contacted at (801) 990-6271.