Plea Bargaining And Sentencing – The Role Of Mitigation – Colorado Criminal Lawyer Series
Plea Bargaining And Sentencing – The Role Of Mitigation – Colorado Criminal Lawyer Series – Since very few cases actually go to trial in the Colorado criminal justice system – ( less than 5 % by most analysis), understanding the importance of strategic, effective, and intelligent negotiations is critical.
This article addresses the key and critical role of using mitigation information on your client during plea bargaining negotiations and at sentencing.
What Is Mitigating Information and What Are Mitigating Circumstances?
One can best understand a mitigating factor by thinking about an aggravating factor. An aggravating factor tends to increase the potential for a harsher sentence. A mitigating factor does the opposite – it can reduce the likelihood of an unjust and harsh sentence. It is a factor that does not necessarily relate to the question of your guilt, but may support compassion and leniency.
If the evidence against you is strong and a trial is out of the question – then you will need to make your best case for a plea bargain and a “mitigated” sentence by the judge. To do that – your lawyer – (or you if you are representing yourself) – must know and understand the factors that will influence a DA and – or a judge to increase or decrease the legally available criminal punishments you ultimately face for the crime(s) you ultimately face.
Sentencing Information Usually Falls Into Two Categories
A sentencing judge is charged with the responsibility of interpreting ANY evidence or information that reasonably relates to a defendant’s culpability.
This information falls into two basic categories:
information about the crime (usually provided by the DA – Prosecutor)
information about the defendant (usually provided by the Defense Lawyer on behalf of the Defendant)
The Mitigation Investigation
While lawyers have the most important function of investigating any and all defenses to criminal charges – once that is done – and it is clear that the case should not go to trial because there is no cognizable defense or chance of acquittal – THEN a thorough secondary investigation should be conducted into the defendant.
If economically possible – an appropriate a psychiatrist, a clinical psychologist, or licensed social worker who has a background in forensic evaluations should be retained to make the most effective case for mitigation.
Any thorough investigation should be conducted into every aspect of the defendant’s life to dig deep into all historical information and background records that could reveal potentially mitigating information about the defendant.
The life history of the defendant identifying potential mental health issues along with statements from those persons who have had the most contact with the accused the most—his family – should be conducted. The family should be targeted because they have close up “firsthand” knowledge of the events in the defendant’s life.
The mitigation investigation should consist of the “circles of people and institutions” that the defendant had contact with during the course of his life as well as:
all tell the story of the defendant’s life…..
Locating And Using “Institutional Records”
Institutional records such as – school records, medical records, government agency records, employment records, military records, and even court or prison records – also help tell the story of the defendant’s life.
Records such as these can establish that the defendant – especially in a violent crime situation – is – outside of this aberrant case – a well adjusted and non-violent person with no indication of future dangerousness.
These records are used to paint a more accurate picture of a defendant’s life for the DA – Prosecutor and the Sentencing Judge. Mitigation “witnesses” can include professional experts, lay experts, and family and friends.
What Are Some of The Most Common Mitigating Circumstances?
The Defendant Played A Minor Role In The Crime.
The Victim’s Own Culpability – The victim willingly participated in the crime or initiated the events leading to it.
The Defendant Acted Under A Heat Of Passion – The defendant committed the crime as a result of a temporary emotional difficulty, a significant provocation or under extreme stress.
Little Or No Harm Resulted From The Defendant’s Actions – No one was hurt and the crime was committed in a manner not likely to cause harm. Here the degree of property loss, personal injury, or threatened personal injury was substantially less is usually characteristic for the criminal conviction.
The Defendant Has A Total Lack Of Criminal History or a Minor Record
The Defendant Acted To Obtain Necessities
The Defendant Accepts Responsibility and Has Genuine Remorse
The Defendant Has Had a Very Difficult Personal History
The Defendant Has An Addiction – Drug and / or alcohol addiction contributed to the crime.
The Defendant Was Only An Accomplice or Accessory to the Crime Not A Major Player
The Defendant Was Under the Influence Of Drugs and or Alcohol At The Time Of The Crime
There Was A Mistake of Fact – Or Mistake Of Law – The Defendant mistakenly believed his conduct was legal.
Little Chance Of Repeated Crimes – There is little chance the Defendant will recividate – the character, habits, mentality, propensities, and activities of the defendant a;; support the proposition that he is unlikely to ever commit another crime.
The Defendant Has A Stable Work History – The Defendant’s background – educational, home life, sobriety, and “social adjustments” all recommend leniency. Here is where documentation can make a difference – documents from the Defendant’s schools; oral and written testimony from character witnesses, public records; news clips; and such items as a certificate of honorable discharge – all assist in painting the true picture of the Defendant.
The Defendant Will Quickly Return To A Normal Life – The Defendant will quickly adjust to law abiding behavior once released.
The Defendant Will Clearly Benefit From Successful Therapeutic Or Other Mental Health Treatment – Rehabilitation opportunities appear very strong and the Defendant’s likelihood of compliance is nearly certain.
The Defendant Cooperated With Law Enforcement In The Investigation Of The Case
The Defendant’s Prior Experience With Probation Or Parole Was Exemplary
The Defendant Has The Capacity To Pay Restitution
The Defendant Spent A Considerable Amount Of Time In Jail Awaiting Sentencing
Further Imprisonment Of The Defendant Would Create Excessive Hardships On His – Her Dependents
The Community’s Attitude Toward The Defendant’s Crime Has Changed – The best example of this is the change of the law enforcement’s attitude to the “War On Drugs.”
Assisting The Colorado State Or Local Probation Officer In The Preparation Of The Pre-Sentence Report – The PSIR
Many times the probation officer who is charged with writing the pre-sentence report is only presented with information from such sources as police reports and victim impact statements. The experienced Colorado criminal defense lawyer must provide the mitigation information to the probation officer as it will probably not come from any other source.
Some Suggestions In This Regard
Gather detailed background information from the Defendant and family members with the goal toward identifying and substantiating issues that have a positive influence on sentencing as well the Defendant’s eligibility for programs.
Attempt – in advance of the pre-sentence report – to explain or mitigate issues that may have a negative impact on the sentencing hearing or later placement in rehabilitation based programs.
a psychiatric evaluation
a substance abuse evaluation
a medical evaluation, or other testing
…would be beneficial to the client’s case – and – if financially feasible – have them done.
Not only send all other positive information to the probation officer, (which should assist in outlining the client’s social history, and also identify and enumerate all appropriate factors), but also include verification of the information – as much as is possible.
Include in the package character letters from family members and all other credible people who will attest to the Defendant’s excellent employment history, community service, or even their role as a mother or father.
E-mail the letter and mitigation package to the probation officer. If the items are sent by email – in PDF format for example – the PO can “cut and paste” the information directly into the pre-sentence report making easier to use the words YOU want the PO to use.
Plea Bargaining And Sentencing – The Role Of Mitigation – Colorado Criminal Lawyer Series
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