A high profile sentencing such as the Derek Chavin sentencing that happened today, with Chauvin being sentenced to 22.5 years, is a good opportunity to explore what goes into a sentencing at any level, State or Federal. There’s more to it than most people realize.
For starters — it’s not all about what happens in the courtroom on the day of sentencing. In fact, sentencing is a process that begins when a defendant pleads guilty or is found guilty, and culminates in the actual sentencing hearing. Prior to that moment, a lot happens.
In Federal and most State cases, the first step toward sentencing is the preparation of what the Feds call “Presentence Investigation Report”, known as the “PSR” — a report by probation that goes to the judge and provides the judge with important information about the defendant and the offense conduct.
Presentence reports vary from Federal to State, but in general, the court needs to know the personal history and characteristics of the defendant, as well as details about the offense conduct — how it occurred, what “mitigating” factors may have contributed to making the offense conduct seem less heinous and what “aggravating” factors might make the offense conduct seem more heinous. It also typically includes detailed, verified financial information about the defendant.
It is crucial for the defendant’s attorney to make sure that the PSR or State Probation presentence report reflects the best possible reading of the defendant, the life he has lived, and the context of the crime. If you are a defendant heading toward sentencing, you need to make sure your attorney is on his game for this, and you need to shake out the cobwebs and get on your game to produce everything required — personal and financial records, personal information. This is no time to be sluggish or resistant. The probation report is ostensibly an impartial report and judges pay close attention to them. The more information in them — and the more favorable that information is for the defendant — the better the chance that the judge will see reason to view the defendant in a more favorable light.
After the PSR or State Probation Report, the next big input that the judge receives is the Sentencing Memorandum for the Prosecution, and the Sentencing Memorandum for the Defense. These are also sometimes referred to as “Sentencing Position”. This is a detailed brief by each side which does a number of things. First, it provides each sides analysis of the appropriate “Guideline Level” for the defendant based on the crime, whether or not there are any “enhancements” that apply (it is a weird feature of legalese than “enhancement” means something that makes the crime worse, adding to the sentence), and ultimately coming up with a number for the “Level” — which in turn translates to a sentencing range on the Federal or State sentencing tables.
Each side also then presents a case for aggravating factors that would warrant an increase above the guideline level, or mitigating factors that would warrant a “downward variance” (decrease) in the appropriate sentence.
Then each side usually arrives at its recommendation for the actual sentence to be imposed — starting from the guideline level, then adjusting up or down in a way that justifies their ultimate recommendation.
Other inputs that go to the judge are Character Reference Letters about the defendant, and a letter from the defendant to the judge. These would typically be filed as exhibits to the Defense Sentencing Memorandum, but in some cases could be filed separately.
If you are a defendant going to sentencing — make absolutely sure that you get character reference letters from all family members and others close to you. These both illuminate your character in what they say, but also simply show support by existing. They are important. Also, your letter to the court, which is optional (but don’t think about not doing it) is also important, potentially very important. (We’ll do another post on how to craft such a letter — bottom line is you want to express remorse, remorse, remorse, and offer solid evidence you are addressing the underlying factors that contributed to your criminality. But there’s more to it than that.)
Thus before the sentencing hearing — the judge has three major inputs — the PSR/Probation report, and the sentencing positions of each side, with Character letters and a letter from the defendant submitted as part of the defense sentencing package.
All of this will (or should be) thoroughly absorbed by the judge prior to the sentencing hearing.
Then comes the hearing itself.
At the hearing, both sides will be given an opportunity to be heard, which usually ends up being a brief summation of what was in the sentencing memorandum. The parties will all discuss with the judge the guidelines (he will have three inputs from defense, prosecution, and probation that may not match) and then the judge will rule as to what he judges to be the correct guideline calculation.
Two key moments in sentencing hearings are the victim impact statement, and the allocution or statement to the court by the defendant.
Again, if you are a defendant — don’t pass up the opportunity to address the court. The judge will have read a lot, mostly bad, about you. Now you get to address him directly. This is a big moment, one in which you can cause a favorable shift in the judge’s attitude toward you if you are respectful, authentic, thoughtful, contrite, and effective n your communication. Your lawyer should work closely on you about your statement. This is a big moment, one worth preparing for.
Then finally– after all of the inputs describe above (and a few more, sometimes), the judge finally makes his decision.
Now — let’s go back to the Chauvin sentencing.
Going into the sentencing hearing, we know that the guidelines under Minnesota law for the charged crime are 12 1/2 years. But that’s just the starting point. We know that the judge has previously four four “aggravating” factors —
- Particular cruelty
- Abuse of position of trust
- Presence of minors
- Three or more participants
The judge didn’t just make these up as “aggravating factors” — they are listed as such in Minnesota law. The judge just found that they apply in this case.
This means that as a starting point, the judge is looking at something more than 12.5 years as the likely correct sentence.
We also know that the prosecution asked for “30 years”, whereas the defense asked for time served and probation.
Here’s one thought to keep in mind if you’re a defendant. You want your defense attorney to represent you zealously — but how much is too much? In this case, Chauvin’s attorney asking for probation was, most legal observers agree, a bridge too far that did not help the client. It is important for a defense attorney to maintain credibility with the court. Probation was asking too much.