A defendant in a criminal case can petition a judge for a lenient sentence in a number of ways, including by making a verbal statement in court or by writing a letter to the judge; an argument by a defense attorney; and through statements or written documents in support from neighbors, clients, friends, spouses, family members, teachers, mentors and employers. An individual may share their support for a lenient sentence through testimony or a document called a declaration.
A judge is likely to consider a statement less valuable when the person making the statement is under the direct control of the defendant. For example, a judge might see statements of support from a defendant’s employees as less valuable than statements from the defendant’s clients.
Character Reference Letters From Children
A defendant should talk with their attorney about submitting a statement or a letter of support from children. Such statements can be influential, but the judge will consider the circumstances under which the child is making the statement. For example, a statement from an adult child may be helpful, but the judge may view the statement with some skepticism if the adult child is employed by the defendant. The statement may be seen as one that the child had to make in order to keep their job.
A statement by a minor child may be helpful, but the judge will look at whether the defendant has physical and legal custody of the child. If so, the judge may see the defendant as having solicited the minor child to write the statement.
A defendant should be aware of the maximum sentence they could face. Judges have the power to order sentence terms for offenses consecutively, meaning one term begins after the first term ends. Typically, a sentencing judge will run terms concurrently, to commence during the same period of time. The fact that a judge chooses to run sentences for multiple charges concurrently is a showing of leniency.
Promising To Be a Good Person
A defendant should be careful not to promise that they can accomplish a great deal in the future. For example, a defendant may want to earn their GED, attend Alcoholics Anonymous groups in prison and earn money through a work release program. The defendant should not state that they could definitely accomplish all of these things. Instead, they should state their interest in successfully completing these tasks. If the defendant has a substance abuse issue or a mental health concern, they should let the judge know they are interested in treatment and will make an effort to obtain it.
Petition During Pre-sentence Investigation
A defendant should petition a judge for leniency during the pre-sentence investigation phase of their case. This phase follows the trial and the announcement of the verdict. The pre-sentence investigation comes before the sentencing hearing. A defendant and their attorney should take care to gather all necessary documents as soon as possible and present them to the court in an organized and calm manner.
The court disfavors last-minute calls and hurried rushes of paperwork. During the pre-sentence investigation, the prosecution and the defense share information with the court. The data considered include the defendant’s health, work record, family situation, prior criminal record, whether it is a first-time offense and other relevant factors, such as the defendant’s disabilities, mental health concerns and substance abuse issues.
There may be mitigating factors that will cause the judge to show leniency. For example, if a defendant has severe health issues, a judge may require them to complete fewer community service hours or less jail time than a defendant in good health.
Motion for Resentencing or Appeal
If a defendant wants to request leniency after sentencing has taken place, they need to request a resentencing. The defendant should submit a motion for resentencing (MFR) with the help of an attorney. They should also submit the appropriate form for resentencing.
Requesting an appeal is a separate matter. To file an appeal, a defendant must submit certain, specific paperwork, including the notice of appeal, within a specific time frame. In California, a defendant in a felony case must submit the required paperwork within 60 days after the court rendered the verdict or issued an order.
Lenient Sentences Can Be Appealed
A prosecutor has the power to appeal a lenient sentence. In Nebraska, an appellate court may review the record of the proceedings to determine whether the sentence imposed is excessively lenient. The appellate court will look at the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed; the protection of the public from further crimes of the defendant; and the importance of reflecting the seriousness of the offense, promoting respect for the law and providing just punishment for the offense.
The appellate court will also look at the need to provide the defendant with required educational or vocational training, medical care and other correctional treatment in an effective manner and the importance of affording adequate deterrence to criminal conduct, or making sure the defendant will not re-offend.
Harsh Sentences Can Be Appealed
The appellate court has the power to reduce the sentence rendered by the lower court that issued the sentence. The appellate court usually engages in such an action when it decides that the sentence is excessive. The appellate court may render a sentence against the accused if warranted by the evidence. Unless the appellate court finds that the lower court did not engage in a substantial miscarriage of justice, it will not set aside the judgment of the lower court or grant a new trial.
Actions After a Sentence
A judge may show leniency when a defendant acts responsibly after being sentenced. The defendant should make an attempt to act appropriately and not re-offend. For example, a defendant who was convicted of a DUI is more likely to be re-sentenced with a more lenient sentence when they can provide proof that they are in treatment for recovery and have not committed another drug-related offense.
Even a defendant in prison can show that they are making an effort. Significant actions include attending Alcoholics Anonymous meetings, going to GED classes, signing up for the work release program, doing well at their job, going to counseling and not getting into conflicts with other inmates.
A defendant who wants to petition for leniency should seek advice from a criminal defense attorney who specializes in the type of crime the defendant committed. For example, a DUI attorney can advise a client to provide the court with paperwork showing the client’s regular attendance at Alcoholics Anonymous meetings. In some circumstances, a defendant can consult with an attorney about what to say in their paperwork and in court without hiring the attorney to actually appear and argue on their behalf.
Writing a Letter to a Judge
A letter requesting leniency should always address the judge as “Your Honor.” The letter should be truthful and express regret for the offense, unless the defendant is maintaining their innocence of the charges. It should note the defendant’s efforts to rehabilitate themselves in chronological order. The letter should share any new information the defendant has, such as that they have a child on the way, they have received an offer of employment or they have made progress on a significant goal, like reaching one year of sobriety.
Review by an Attorney
A defendant should ask their attorney to review all documents relating to leniency before submitting them to the court. It is important that the documents supporting the defendant’s request for leniency do not bring up new incriminating information. The documents should be accurate, relate events in chronological order and not blame other parties for the defendant’s actions. Also, the documents should not exhibit a disrespectful tone, fail to adhere to the court’s formatting requirements or be unnecessarily long. Usually an attorney can help a defendant keep letters and declarations to a single page.
- Nebraska Revised Statute Section 29-2308: Reduction of Sentence; Conditions; Appellate Court; Powers
- Nebraska Revised Statute Section 29-2322: Appeal of Sentence by Prosecutor; Review; Considerations
- American Bar Association: How Courts Work
- California Form CR-404: Petition/Application for Resentencing and Dismissal (Penal Code Section 1170.22)
- California Form MC-303: Declaration
- California Form CR-120: Notice of Appeal, Felony
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.