A judge’s perspective on sentencing hearings
This article started with a mistake. I had written an article for the Child Law Section Council on juvenile sentencing hearings. After it was published, my friend, Retired Judge Al Swanson, the editor of this publication, asked me if I would modify it for adult sentencing hearings. The mistake was that I said “yes.” When I said “yes,” I had forgotten that I have not sentenced any adult for any criminal, traffic or ordinance violation since 2008. So, I frantically reached out for advice from some other judges. Judges George Bakalis and Michael Wolfe of DuPage County were kind in providing ideas and advice for this article. Most of what you will find helpful in this article will be thanks to them; anything you don’t like or any mistakes are my fault. So, here we are!
There are sentencing hearings in many types of cases: Traffic, Misdemeanor, Ordinance Violations and Felony cases. As most of you know, most cases do not go to trial and are resolved by pleas. If there is a negotiated plea, the sentencing hearing is usually brief and the result predetermined by the agreement. In this article, I intend to focus on blind (or non-negotiated) pleas and sentencing hearings after trials.
In felony cases, a presentence report will normally be prepared by the Probation Department. The reports are very thorough and detail almost every aspect of a defendant’s life. The defendant’s prior contacts with the justice system; prior adult and juvenile criminal background; residential history; economic situation; physical and mental health; drug or alcohol use; school performance—both academic and disciplinary; and much more is set out in detail in the report. The Probation Department can and usually does make specific sentencing recommendations.
Attorneys need to prepare their clients to properly participate in the preparation of the report. Remind them—before they meet with the probation officer—that everything they say to the probation officer preparing the report can and will be reported to the judge. It is helpful to ask your client some of the questions that the probation officer might ask them before they actually meet with the probation officer. You can help them prepare appropriate responses to these questions. Also, remind them that they need to treat the probation officer with courtesy and respect. These officers are the “eyes and ears” of the judge in this process.
Defendants are often asked to comment on the effect of the crime on the victim or to give their version of the offense. Please remember to go over this with your client before they turn anything in for the report. I have often seen answers like: “They got what they deserved”; or “I don’t care” in the report. These types of answers are not particularly helpful to these defendants at sentencing. As a lawyer, it is your responsibility to spend some time preparing your client for this process.
In most pleas, there is no Pre-sentence Report. It is still a good idea to look at the statutory factors in aggravation and mitigation contained in 730 ILCS 5/5-5-3.1 and 3.2. This can help you and your client focus on things that the judge will consider at the sentencing hearing. You may be able to anticipate what the prosecutor will focus on and come up with a strategy to respond in a way that helps your client.
Prior to the hearing, you should consider if letters of good character or potential character witnesses might be of benefit to your client. Family, friends, work supervisors, teachers or others may be beneficial to your client. You need to provide any documents to the other side and to the judge at the hearing. Use some common sense in considering whether these will be of benefit. If they are too generic, they may mean nothing; but, in some cases, they can be powerful tools to help your client. Also, if you are calling witnesses, be certain to properly prepare your witness. Make sure they know why you are calling them and what you are going to ask. Also, remember to prepare them for cross-examination by the other side. Again, emphasize that they also must treat everyone with courtesy and respect. That does include the prosecutor! Remind them not to argue or be rude.
You should have your clients come to court early on the date of the sentencing hearing. Remind them to be courteous and respectful to everyone in the courtroom. This includes the prosecutor, the victim, judge and all the court staff. Tell your client how to dress for court. I have been shocked to see defendants wearing incredibly inappropriate clothing to court. One defendant came to court in a shirt that had a picture of someone pointing a gun at the viewer. I literally asked them: “What were you thinking when you decided to wear that shirt today?”
You and your client need to carefully read the pre-sentence report (if there is one) prior to the hearing. As a judge, I always ask if the defendant has read the report. If they have not; I pass the case until they have read it. You should read the report and be ready to highlight the good parts for your client and explain the “bad” parts. In cases where you know jail or penitentiary time is a possibility, you should be ready to explain why a sentence of probation would benefit your client and society.
Also, like most judges, I always follow a set order for sentencing hearings. I have the state go first; then the lawyer for the defendant; and, finally, the defendant. On occasion, the victim or a member of the victim’s family will be present in court. They also have the right to speak; I usually have them go first. You should find out what the practice is for each judge. You can ask the prosecutor or the public defender assigned to the courtroom about how the judge handles sentencing hearings. Trust me, they will know.
If the victim or a member of the victim’s family is present in court, your client and your client’s family, if present, needs to be respectful to them. If your client has pled guilty, he or she should apologize to the victim. If there was a trial and your client is maintaining their innocence, as a good lawyer, you will not want your client to incriminate themselves. However, depending on the facts of the case, there is often a way that you or your client can be respectful to the victim without admitting any fault. Having your client apologize, when appropriate, can be very beneficial to the victim and have a positive impact on the judge’s view of your client. Just having your client say: “I’m sorry” can be helpful to them in the eyes of the judge. As a judge, I am shocked at how often this does not occur.
Prepare your client for the fact that the victim or victim’s family may be speaking at the sentencing hearing and give them some instructions on how to act while they are doing so. Laughing, rolling their eyes, and shaking their heads are all reactions that I have seen as a judge. Judges don’t react well to this type of conduct.
Obviously, the prosecutor will speak at the sentencing hearing. He or she will talk about the aggravating factors in their remarks. Again, make sure that your client is prepared and does not respond in an inappropriate way.
Your client has the right to speak on his or her own behalf at the sentencing hearing. This can help or hurt, depending on what is said and how it is said. Again, preparation is crucial. You need to make sure that your clients present themselves to the judge in the best light possible. As their lawyer, you should have them tell you what they wish to say before they say it to the judge. Things like: “I am sorry;” or, “I made a mistake, I have learned from this and I will never do this again” can be very impactful. Saying the wrong thing – i.e. “They (the victim) got what they deserve” or “They left the keys in the car, it was their fault I took the car” (statements that I have actually heard in Court) - are probably not very helpful to their cause. In an appropriate case, it may be better to say nothing than to say something. As their lawyer, you need to advise your clients and make appropriate suggestions of what would be best for them.
Again, preparation is critical to this whole process. It is important to prepare your client for the hearing. What your client says and does at the hearing can have a profound impact on the judge. As a good lawyer, you need to prepare them to help rather than hurt themselves. Also, unless you are in public service, get paid! That can be the subject of a whole different article. No, Al, I am not volunteering for that!