Anyone who has ever practiced criminal law knows that about 90% of all cases conclude with a sentencing hearing. Further, most cases do not go to trial, but end in pleas of guilt. Often those pleas are negotiated sentences. Occasionally, a case ends by way of a "blind" plea where there is no agreement between the State and the defense as to a sentence disposition. In such cases, the sentencing hearing is crucial. Moreover, when there is a finding of guilt at trial, sentencing hearings also play a critical role in the proceedings.
Absent a negotiated agreement on a felony case, a judge cannot proceed to sentencing without a pre-sentence investigation.1 Such an investigation and the resulting report is not required for sentencing on a misdemeanor case, although in some cases, the sentencing judge and/or the parties request a pretrial investigation. In felony cases, the reports are comprehensive.2 When a report is ordered, the probation department must interview the defendant. The defendant must go to the probation department, complete a short form, and make a follow-up appointment. Subsequently, the defendant must fill out a more in-depth form for the follow-up probation appointment. A defendant never helps his or her cause by failing to show up for probation appointments. So, a practitioner’s first task, after the pre-sentence report order, is to ensure the client’s appearance at the scheduled probation appointments.
Prior to the date of sentencing, a defense attorney should review the pre-sentence report with the client. At sentencing, the judge will ask if there are any factual additions, corrections or deletions. Occasionally, errors in the pre-sentence report have an impact on the judge. However, many errors raised by attorneys are superficial, such as incorrect phone numbers or misspelled names. I have never given a harsher or milder sentence because of a minor error in the report. I speak for every judge in DuPage County when I say that we don’t care about those types of details. It may be important to the client, but he or she should know that it makes no difference to the judge. Also, it wastes time. Time is one resource judges hate to waste. Usually, our courtrooms are crowded. Don’t make changes that are unimportant.
The importance of a client’s reviewing the report with counsel cannot be understated: it allows for a fully informed defendant and insulates a practitioner from ineffective assistance claims. A practitioner should always make it clear, on the record, that he or she has gone over the report with the defendant.
Judges also have a responsibility to read pre-sentence investigation reports. Be assured, we all fulfill that duty. Thus, during argument, whether you are a prosecutor or defense lawyer, do not re-read the report to the bench.
Another important way a defense attorney can assist his or her client is to encourage the client’s family and friends to be at the sentencing hearing. From a judge’s perspective, it is positive to see that the defendant has family and friends willing to show up in the gallery in support of the defendant, even if they will not be testifying on his or her behalf. This showing enables an attorney to argue that his or her client has a support system in place to assist in dealing with the problems that brought the individual to court in the first place. Conversely, it is also helpful for the prosecution if the victim comes to court. This is particularly true in cases involving violence against a victim. Additionally, in certain cases, crime victims have the right to give a victim impact statement to the court.3 These statements can have a powerful effect on a judge at the time of sentencing.
A sentencing hearing also provides the opportunity to present evidence in aggravation or mitigation.4 In appropriate cases, evidence in aggravation or mitigation can have a great impact. In my opinion, it is useless to put on evidence of past convictions, already listed in the pre-sentence report, unless there is some special fact that is not readily apparent on the face of the pre-sentence report section listing past convictions. Furthermore, the proponent of any extensive evidence should give the judge adequate notice, so that the judge can schedule the sentencing hearing at an appropriate time. Each judge has a motion day where we often have 75 to 100 cases on the court call. A lengthy sentencing hearing is not possible on those days. Moreover, letters or other documents may be submitted at a sentencing hearing. If such documentation is lengthy, it should be submitted to the judge ahead of time, to enable him or her to read it prior to the hearing. Obviously, opposing counsel must be given notice of such a submission.
It can be helpful to argue the statutory factors in aggravation5 and mitigation6 at sentencing. However, simply reading those factors does not assist your client. It is particularly annoying to have someone read factors that have no possible relevance to the case at bar. Again, an awareness of judicial time constraints is important. We want to give both the state and the defense as much time as they really need; however, allotted time should not be wasted.
An effective defense argument is to suggest alternatives to incarceration that are appropriate in a particular case. For example, if the defendant is a drug addict, treatment under the TASC statute may be appropriate.7 If the defendant states at the time of the plea that he is a drug addict, the court will ask (1) if the defendant is eligible for TASC and (2) if the defense attorney has discussed this option with the defendant. Nothing is worse than the client and his attorney looking back and forth at each other with no clue about this possible treatment alternative. Defense attorneys must be prepared to answer the foregoing or lose credibility.
Defense attorneys who are unfamiliar with some of the sentencing alternatives would be well served by taking the deputy public defender assigned to the courtroom where your case is being heard out for a cup of coffee or for lunch. Generally, public defenders are well prepared, know the sentencing alternatives, and can tell you what the judge in their courtroom likes and does not like.
After evidence and arguments are presented at a sentencing hearing, the defendant has a statutory right of allocution.8 In preparing for sentencing, the defendant should be told he or she will have the opportunity to speak to the judge. It is a good idea for a defense attorney to give his client some suggestions as to what to say and ask that the client tell the attorney what he is going to say. I have seen many defendants help or hurt themselves with their statement in allocution. If a defendant is unprepared for his statement in allocution, even the most eloquent defense can be undermined by an off-color statement by the defendant, like blaming the victim in a sex crime. A practitioner must make sure that his or her client is well prepared when asked to speak by the judge.
The slogan of a popular movie, when I was young (a long time ago, as my kids remind me) was that "love means never having to say you are sorry." Sentencing usually always means having to say you are sorry. In my opinion, sometimes even an apology can help a defendant at sentencing, and, not making an apology can hurt.
In sum, the foregoing can be reduced to the following three points:
1. Be prepared
2. Don’t waste time
3. Know the law
Most attorneys already do these things; if you don’t, you should, because it will benefit your client and your practice.
1 730 ILCS 5/5-3-1.
2 See 730 ILCS 5/5-3-2.
3 725 ILCS 120/3 and 120/4.
4 730 ILCS 5/5-4-1 (a).
5 730 ILCS 5/5-5-3.2.
6 730 ILCS 5/5-5-3.1.
7 20 ILCS 301/40-5 et seq.
8 730 ILCS 5/5-4-1(a)(6).
Judge Robert Anderson is a Circuit Court Judge for the Eighteenth Judicial Circuit Court of DuPage County, Illinois. He is currently assigned to the Felony division. Judge Anderson received his Bachelor of Arts from Loyola University (Chicago) in 1971 and his Juris Doctor from Loyola University School of Law in 1974. Judge Anderson has the privilege of being married to Irene Bahr and together they have three children.