Building a Sentencing Record Before the Day a Judge Is Asked to Decide a Defendant’s Future
By Patrick L. Garrity, Boston Criminal Defense Attorney
When people think about sentencing mitigation in a criminal case, they often picture what happens immediately before sentencing: a lawyer prepares a memorandum, family members write character letters, the defendant addresses the court, and counsel argues for leniency.
Those things can be important.
But Boston criminal defense attorney Patrick L. Garrity has found through representing clients in serious Massachusetts state and federal criminal cases that some of the strongest mitigation begins months before anyone walks into court for sentencing.
Employment. School. Counseling. Substance-use treatment where appropriate. Community involvement. Compliance with pretrial conditions. Reentry planning. Professional training. Family responsibilities. Voluntary programming. Developing a stable support system. Addressing the underlying issue that may have contributed to the case.
Those things are more persuasive when they reflect a sustained course of conduct rather than a collection of documents assembled shortly before a judge imposes sentence.
One principle I repeatedly emphasize to clients is simple:
Mitigation is not something that should be manufactured for sentencing. It is a record that should be built over time.
What Is Sentencing Mitigation?
Mitigation is information that helps a prosecutor or judge understand the person standing before the court beyond the criminal charge itself.
The allegations matter. The harm caused by an offense matters. A defendant's criminal history matters.
But sentencing is generally not supposed to occur in a vacuum.
Massachusetts Rule of Criminal Procedure 28 expressly gives a defendant and defense counsel an opportunity before sentencing to present information in mitigation of punishment. Massachusetts sentencing principles likewise recognize several purposes of sentencing, including punishment, deterrence, protection of the public, and rehabilitation, and identify a defendant's background and personal circumstances as information a judge may consider.
That means a sentencing presentation can address considerably more than the elements of the offense.
Depending upon the case, mitigation may include a defendant's employment history, education, family circumstances, community involvement, treatment, mental-health history, substance-use history, medical conditions, military service, prior periods of successful supervision, rehabilitative efforts, acceptance of responsibility where appropriate, and a realistic plan for the future.
The objective is not to excuse criminal conduct.
It is to give the court enough reliable information to impose an individualized sentence.
Why Waiting Until Sentencing Can Be a Mistake
A defendant cannot necessarily create six months of stability during the week before sentencing.
That is why I frequently begin thinking about mitigation well before a case reaches a plea or sentencing hearing.
If a client is unemployed and capable of working, finding legitimate employment may matter.
If a client left school, returning to school or pursuing vocational training may matter.
If substance use played a legitimate role in the underlying conduct, beginning treatment may matter.
If a client would benefit from counseling, establishing a relationship with an appropriate provider may matter.
If the defendant has significant unstructured time, meaningful community involvement may matter.
And perhaps most importantly, if there is some problem underlying the alleged conduct that can actually be addressed, there is often no strategic reason to wait until sentencing to begin addressing it.
A promise to a judge that someone will change is one form of mitigation.
Evidence demonstrating that someone already has changed something can be far more persuasive.
Actions Over Time Can Be More Persuasive Than Last-Minute Promises
I recently prepared a sentencing memorandum in a Massachusetts criminal case in which one of the central issues was how much additional incarceration was actually necessary.
The mitigation did not depend on saying that the client would someday find employment, become involved in the community, obtain professional training, or establish support.
We were able to show an actual history.
The client had maintained lawful employment, pursued vocational training and professional credentials, complied with supervision for a substantial period, participated in community and reentry organizations, and developed relationships with professionals who were prepared to continue working with him.
That distinction mattered.
In the memorandum, I emphasized that those efforts were particularly significant because many of them predated the criminal case itself. They had not been undertaken after arrest merely to create favorable material for a sentencing judge.
That is an important distinction in mitigation generally.
Judges have heard promises before.
Sustained conduct is different.
Employment Can Be Powerful Mitigation
Employment is not automatically mitigating, and holding a job does not excuse criminal conduct.
But meaningful employment can provide evidence of stability, responsibility, structure, and successful functioning in the community.
For that reason, when appropriate, I may want to document more than simply the fact that a client is employed.
A strong sentencing presentation might explain what the person actually does, how long the person has worked there, whether the employer considers the person reliable, whether advancement has occurred, whether professional certifications have been earned, and whether the employment will remain available after the criminal case is resolved.
A letter stating:
“John works here.”
is helpful.
A credible employer explaining that the defendant has worked consistently for two years, arrives on time, supervises other employees, has earned additional certifications, supports a family through that work, and will remain employed if permitted to do so tells the court considerably more.
Education and Vocational Training Matter for the Same Reason
Returning to school, completing a degree, obtaining a trade certification, or pursuing legitimate vocational training can demonstrate forward movement.
I have represented clients for whom conventional college was not the realistic path, but skilled trades, professional certifications, or vocational education were.
Those accomplishments can be particularly meaningful because mitigation should be individualized.
The goal is not to create the image of some theoretical "ideal defendant."
It is to show what this particular person is actually doing to build a lawful, stable life.
Counseling and Treatment Should Be Genuine
Counseling can be extremely important mitigation when there is a legitimate treatment need.
But this is an area where defendants should consult with their attorney before enrolling in a particular program or discussing the facts of a pending case.
A criminal defendant should not make potentially incriminating admissions merely because someone told him or her that "counseling looks good for court." Different programs have different confidentiality rules, reporting obligations, admission requirements, and potential consequences.
The appropriate treatment also depends upon the case.
There is a meaningful difference between substance-use treatment, individual therapy, anger-management counseling, trauma treatment, psychiatric care, and offense-specific programming.
The objective should be treatment that actually addresses an identified need, not checking a box for a sentencing memorandum.
When treatment is clinically appropriate and legitimately undertaken, however, a sustained history of participation can provide important information about rehabilitation and future risk.
Massachusetts sentencing principles expressly recognize rehabilitation and reintegration among legitimate sentencing considerations.
Community Service Is Most Effective When It Is Meaningful
The same principle applies to community service.
Ten hours of community service completed immediately before sentencing may still be worth presenting.
But sustained involvement generally tells a better story.
Some of the strongest mitigation I have encountered involves clients who become involved with organizations in ways that are connected to their actual lives.
That might include:
- assisting a reentry organization;
- coaching;
- volunteering with a community organization;
- helping veterans;
- working with a faith community;
- assisting families experiencing homelessness;
- participating in charitable drives; or
- contributing a professional skill to an organization that needs it.
The point is not simply accumulating hours.
The strongest mitigation helps demonstrate a person's place in a community and the positive contributions that would potentially be lost through unnecessary incarceration.
A Defendant's Support System Can Change a Sentencing Argument
One issue courts appropriately consider is what will actually happen if a defendant is allowed to remain in, or eventually return to, the community.
“I'm going to do better” is not much of a plan.
A defense lawyer should attempt, where possible, to answer more concrete questions.
Where will the client live?
Will employment be available?
Who will provide treatment?
Has a provider actually agreed to accept the person?
Who will help ensure appointments are kept?
What family support exists?
Is transportation available?
Can the proposed probation conditions realistically be followed?
Does the person have responsibilities to children, elderly parents, or other dependents?
A concrete release or sentencing plan can make a substantial difference because it moves the defense argument from aspiration to implementation.
In one recent sentencing matter, for example, I was able to present evidence that a licensed clinician already knew the client, had worked with him before the case, and was prepared to begin meeting with him immediately upon release. A community organization was likewise prepared to assist with reentry.
That is much more persuasive than telling a judge:
“He will find a therapist when he gets out.”
What a Defendant Does While Incarcerated Can Matter Too
Early mitigation is not limited to defendants who are released before sentencing.
When a client is detained, I want to know what programming is available and whether the client is using the time productively.
Educational courses, substance-use programming, vocational programs, rehabilitative classes, religious programming, work assignments, and other legitimate institutional opportunities may become part of a sentencing presentation.
Again, the defense should not overstate their significance.
Completing a tablet-based course does not erase serious criminal conduct.
But voluntary participation can tell a judge something about how the defendant has responded to incarceration and whether he or she is making constructive use of the time.
In a recent Massachusetts sentencing memorandum, I specifically emphasized that the client had begun participating in educational and rehabilitative programming before the court ordered him to do so.
That distinction can matter because voluntary action sometimes says more than compliance after sentencing.
Compliance While a Criminal Case Is Pending Is Evidence Too
Criminal cases frequently remain pending for months and sometimes years.
For defendants, that delay can be frustrating.
But the passage of time can also create an opportunity.
If someone remains on release for twelve months and during that time:
maintains employment, complies with probation or pretrial conditions, has no new arrests, attends treatment, remains in school, supports a family, and otherwise lives productively,
the defense should preserve that information.
A lengthy period of successful community conduct may provide the prosecutor and court with actual evidence concerning risk and rehabilitation.
This is one reason I sometimes tell clients that time can become a resource in a criminal case if they use it correctly.
A pending case should not place someone's life entirely on hold.
Mitigation Can Matter Before a Plea Is Ever Entered
Another misconception is that mitigation matters only after guilt has been established.
That is not always true.
A well-developed mitigation package can become relevant during negotiations with the prosecutor long before a sentencing hearing.
The prosecutor evaluating a possible resolution may want to know:
Who is this defendant?
Does the person have a criminal history?
What has happened since the alleged offense?
Has the person been working?
Has the person engaged in treatment?
Has there been another incident?
What would probation accomplish?
Is there a realistic alternative to incarceration?
What collateral consequences will result from a conviction?
The answers to those questions may affect not only the sentence being discussed, but sometimes the structure of the proposed resolution itself.
That is why I often begin collecting mitigation while the defense is simultaneously litigating the merits of the case.
Preparing for trial and preparing mitigation are not necessarily mutually exclusive.
Mitigation Does Not Mean Giving Up the Defense
This point is critical.
A defendant can maintain innocence and still take constructive steps while a case is pending.
Obtaining employment does not admit guilt.
Going back to school does not admit guilt.
Volunteering does not admit guilt.
Following court orders does not admit guilt.
Getting appropriate mental-health care does not necessarily admit guilt.
But certain types of offense-specific treatment, written statements, admissions, evaluations, and counseling records can create complications in a pending criminal case.
For that reason, mitigation strategy should be coordinated with defense counsel.
The goal is to improve the client's circumstances without inadvertently damaging the underlying defense.
Character Letters Are Better When They Tell the Court Something Specific
Character letters remain useful, but generic letters are less effective than many people assume.
A letter saying:
“Patrick is a good person and deserves another chance.”
does not give the judge much information.
The better letters explain the writer's relationship with the defendant and provide concrete examples.
An employer might describe work performance.
A teacher might discuss academic progress.
A counselor may be able, within appropriate confidentiality limits, to document attendance and engagement.
A family member may explain caregiving responsibilities.
A community leader may describe sustained volunteer work.
The defense lawyer's job is then to organize those different pieces into a coherent sentencing narrative rather than simply handing the judge fifty letters.
The Sentencing Memorandum Should Explain Why the Mitigation Matters
A sentencing memorandum should not merely be a scrapbook of positive information.
The lawyer has to connect the mitigation to the sentence being requested.
Why does employment matter?
Why does treatment matter?
Why does community support matter?
Why does a lengthy period without another arrest matter?
Why is probation capable of managing whatever risk remains?
Why is additional incarceration necessary or unnecessary?
What conditions could address the legitimate concerns raised by the case?
The Massachusetts Trial Court's sentencing principles emphasize proportionality and recognize that a sentence should address punishment, deterrence, public safety, rehabilitation, and reintegration while being no more severe than necessary to accomplish the applicable purposes.
That is where mitigation becomes advocacy.
The point is not merely:
“Here are good things about my client.”
The argument is:
“Here is reliable evidence about this individual, and here is why that evidence supports the particular sentence we are asking the court to impose.”
Accountability and Rehabilitation Are Not Opposites
One theme I have used in my own Massachusetts sentencing advocacy is that a court does not necessarily have to choose between accountability and rehabilitation.
A sentence can impose meaningful consequences while simultaneously creating a structure designed to reduce the likelihood of another offense.
In one recent case, for example, the defense recommendation included a period of committed incarceration, a substantial suspended sentence, supervision, treatment, and offense-related conditions.
Our argument was not that the conduct should carry no consequences.
The argument was that continued incarceration was not the only available mechanism for protecting the public and promoting future compliance.
That distinction is important.
A thoughtful mitigation presentation should confront the seriousness of the case rather than pretending it does not exist.
Mitigation Is Equally Important in Federal Criminal Cases
The same concept is central to federal sentencing, although the framework is different.
Under 18 U.S.C. § 3553(a), a federal sentencing court considers, among other things, the nature and circumstances of the offense and the history and characteristics of the defendant, as well as punishment, deterrence, protection of the public, and the need for educational, vocational, medical, or other correctional treatment.
Federal law also broadly permits courts to receive information concerning a convicted person's background, character, and conduct for sentencing purposes.
That makes the factual development of mitigation particularly important.
In federal cases I have worked on, sentencing preparation has included analysis of the United States Sentencing Guidelines alongside development of the individual circumstances that may support the requested sentence.
The Guideline calculation matters enormously.
But it does not tell the entire story of the defendant.
Federal Sentencing Mitigation Can Take Months to Develop
A strong federal sentencing presentation may involve:
employment records, medical records, treatment documentation, family history, psychological or psychiatric information, educational history, financial circumstances, military service, collateral consequences, character letters, expert evaluation, restitution efforts where appropriate, community support, and a detailed post-sentencing plan.
Federal sentencing also expressly considers post-offense conduct in important contexts. The Sentencing Guidelines' acceptance-of-responsibility commentary, for example, identifies post-offense rehabilitative efforts such as counseling or drug treatment as conduct that may be relevant to the analysis.
Those records cannot always be assembled effectively in a few days.
Which brings the analysis back to the same principle:
If sentencing may someday matter, mitigation should not begin the week before sentencing.
What I Tell Clients Early in a Criminal Case
Every case is different, and not every client should undertake the same steps.
But when appropriate, I often want a client thinking early about several questions.
Are you working?
Are you in school?
What are you doing with your time?
Would legitimate counseling or treatment help you?
Are there unresolved substance-use issues?
Are you complying completely with court orders?
Are there professional credentials you can continue pursuing?
Are you supporting your family?
Are you involved in your community?
Who would actually be available to support you if this case resulted in probation?
What evidence will exist six months from now showing what you have done during the period when the criminal case was pending?
Those are not questions designed merely to make someone look better.
They are questions about whether the person can use the period while the case is pending to create greater stability in his or her life.
If sentencing never becomes necessary, the client is generally no worse off for having done something constructive.
If sentencing does become necessary, the defense may then have months or years of genuine evidence rather than promises made at the courthouse door.
What Mitigation Should Not Be
Mitigation should never involve fabricating achievements, obtaining meaningless certificates solely to impress a court, coaching friends to exaggerate character letters, or presenting treatment as genuine when it is not.
Judges and prosecutors see sentencing presentations every day.
Artificial mitigation can damage credibility rather than improve it.
The strongest mitigation is usually specific, documented, consistent, and believable.
It tells a story supported by evidence.
The Goal Is an Individualized Sentence
Criminal charges inevitably reduce complicated human beings to docket numbers, offense descriptions, police reports, and sentencing ranges.
Part of the defense lawyer's responsibility at sentencing is to restore the rest of the picture.
That does not mean asking a judge to disregard the offense.
It means giving the court enough information to determine what punishment is actually appropriate for this defendant, in this case, at this point in his or her life.
Massachusetts courts recognize that sentencing requires consideration of both the demands of society and the individual circumstances of the person before the court. The Massachusetts sentencing bench book describes the process as requiring consideration of punishment, deterrence, public protection, rehabilitation, the defendant's background, risk of recidivism, and other mitigating circumstances.
The defense cannot control every part of that analysis.
But it can make sure that when the sentencing decision arrives, the court has more to evaluate than the allegation that brought the defendant into the criminal justice system.
That work should begin early.
Massachusetts and Federal Sentencing Advocacy
Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals in serious Massachusetts state and federal criminal matters.
His practice includes Massachusetts Superior Court and District Court criminal defense, federal sentencing advocacy, sentencing memoranda, mitigation development, plea negotiations, probation-related matters, constitutional litigation, and jury trials.
Patrick works with clients throughout the criminal process to identify not only legal defenses to the government's allegations, but also the personal, professional, rehabilitative, and community circumstances that may become important in negotiating or resolving a criminal case.
Every sentencing matter is different, and mitigation strategy should be developed according to the individual facts, charges, procedural posture, and objectives of the client.
Prior results do not guarantee a similar outcome.
About Patrick L. Garrity
Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals in serious Massachusetts state and federal criminal cases. His practice includes Massachusetts Superior Court jury trials, federal criminal defense, sex-crime allegations, violent offenses, white collar and public-corruption matters, constitutional motion practice, sentencing advocacy, and other complex criminal prosecutions.