How Do Character-Reference Letters Influence Judges and Sentencing

Through the course of our work, members of our team frequently interact with members of the judiciary. From those interactions, we’ve learned a great deal about how judges react to character reference letters.

For example, you may click the following link to watch a one-on-one interview that one of our team members did with U.S. District Court Judge Mark Bennett. Judge Bennett spoke specifically about Character Reference Letters. He said that he as read somewhere between 30,000 and 40,000 character-reference letters.

See video on Character Reference Letters on our YouTube Channel
Judge Bennett based his estimate on the fact that he has sentenced more than 4,000 people. On average, Judge Bennett said, defendants submit between seven and nine character-reference letters. Some defendants, however, go overboard. Judge Bennett spoke about one defendant who submitted 100 character-reference letters.

He does not give much weight to letters that all sound the same.

According to the federal judges with whom we spoke, a large number of character reference letters may serve the defendant’s ego. But a massive quantity of letters rarely advances prospects for mercy at sentencing.

Judges want to know more about the people that stand before them for sentencing. But they are looking for authentic information from people who know the defendant best.

Rather than boilerplate language, a judge wants to read details that reveal more about the defendant as an individual. Those letters should come from people who know the person best. If the author of a character-reference letter can bear witness to the ways that the defendant has brought value to the community, or to an individual’s life, the letter will leave a lasting impression upon the judge.

On the other hand, if a letter offers platitudes about the defendant “being a good person,” the judge isn’t likely to pay much attention.

Judges want specific details that show the defendant is a good person.

Like all people, judges respond to stories. Recently, my partner and I attended a sentencing hearing in Judge David Carter’s courtroom at the U.S. Federal District Court in Orange County, California. Judge Carter was presiding over a client of ours who was being sentenced for a fraud offense that resulted in losses of more than $6 million. Guidelines for the offense could have put our client in prison for longer than five years. Yet Judge Carter (and even the U.S. Attorney) spoke glowingly about the defendant’s post-conviction rehabilitation, as evidenced by his sentencing narrative and the character letters that revealed him to be a good citizen.

What did those letters say that prompted a federal prosecutor and a federal judge to comment on his character?

The character-reference letters told stories. Rather than offer platitudes about kindness and generosity, the letters in this case offered snapshots of how the defendant brought real value to the lives of other people in his community. Those stories left a lasting impression with Judge Carter, and also with the prosecutor. The judge sentenced our client to 18 months, and he attributed both the character-reference letters and the defendant’s personal narrative as a reason for the downward departure from the sentencing guidelines.

Prior to the landmark U.S. Supreme Court decision in the case cited as U.S. v. Booker, [125 S. Ct. 738, (2005), judges did not consider a defendant’s personal characteristics. The Booker decision put a new responsibility on federal judges. The Supreme Court instructed federal district court judges to impose a sentence with reference to a wider range of sentencing factors set forth in the federal sentencing statute. Those factors include:

The history and characteristics of the defendant
To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
Mitigating circumstances not adequately taken into consideration by the Sentencing Commission
Defendants who want to have a role in helping judges at sentencing will do their best to present character-reference letters from people that can attest to the positive attributes of the individual being sentenced.

Another judge with whom our team spoke is U.S. District Court Judge Stephen Bough. You can watch the interview with Judge Stephen Bough respond to our question about character reference letters:

Character Reference Letters at Sentencing
Judge Bough specifically said that too many letters do not help him during the sentencing deliberation process. He prefers to receive letters from genuine people, from people that really know the criminal defendant. He advises defendants not to burden the judge with too many letters that the judge does not have time to read. Rather, he advises defendants to be strategic. Choose people that can really talk about specific stages, or episodes, in a defendant’s life. The letters help a defendant if they make an impression upon the judge that the defendant has truly owned what he has done. If the judge has a sense that the defendant truly has truly reflected on his past, and has a plan to move forward, the judge may be more inclined to be merciful at sentencing.

Character-reference letters should serve a specific purpose: They should help judges understand more about the individual as a human being. In the following video, we can watch clips from a series of stakeholders that include a federal probation officer, a member of the U.S. Sentencing Commission, and a sentencing judge:

Get to Know More About the Power of Character Reference Letters
Prior to imposing sentence, the judge offers a lot of insight into what he is thinking. He expresses dismay because he says that he doesn’t know anything about the defendant. Specifically, the judge says, “I still don’t know who you are. I can’t figure out anything.”

The judge acknowledges that he understands the charges and circumstances that to the sentencing hearing. But he says that he is struggling to determine what’s right to do because he can’t figure out the backstory of the defendant.

Judges want the backstory! And a defendant that wants to advance prospects for mercy must make every effort to provide the judge with that backstory. Some strategies include:

Prepare an effective, first-person sentencing narrative
Prepare an effective sentence-mitigation video
Prepare an effective, well-coordinated character-reference letter campaign
Taken together, the above three strategies will advance prospects for mercy at sentencing. Judges will hear from prosecutors. They will hear from probation officers. They will hear from the defense attorney. But more than anything else, before imposing a sentence they want to hear from the defendant and from the people that know the defendant best.

Why is the defendant worthy of mercy?

Recently, we saw an example from U.S. District Court Judge Emmet Sullivan, from the DC Court. Judge Sullivan was scheduled to sentence Michael Flynn. Many expected that Judge Sullivan would grant mercy to Mr. Flynn at sentencing, sparing him a term of imprisonment. Even the prosecutor asked for a non-custodial sentence.

Yet prior to sentencing, Mr. Flynn’s team submitted written documents that brought an abrupt change to the anticipated outcomes from the sentencing hearing.

Michael Flynn pleaded guilty to a felony charge and also cooperated with the government. He asked for leniency. Then, Flynn submitted papers that basically accused the government of tricking him into pleading guilty. In response, Judge Sullivan said “I’m not hiding my disgust, my disdain, for this criminal offense.”

By accusing the government of manipulating him into pleading guilty for telling lies to the FBI, Michael Flynn undermined his claim of accepting responsibility.

Judge Rebukes Michael Flynn at Sentencing
While working on your character-reference letter campaign, keep these lessons in mind. Your letters should serve to fortify your plea for mercy, not undermine it. Remember the main purpose of a character-reference letter—at least with regard to the sentencing hearing: Help the judge learn more about a defendant’s character. The judge wants authenticity from genuine people.

What does the judge consider a genuine, credible person?

The judge wants to hear from people that know the defendant best. They’re people that will go on the record, bringing specific details that show how the defendant contributes to society in meaningful, measurable ways.

The letter should provide specific examples about what they have personally seen from the defendant. A small story will leave a lasting impression with the judge if it reveals what the writer observed and knew about the defendant’s character.

For example:

In a recent case involving securities fraud, a defendant with whom we worked advanced his plea for leniency with a character-reference letter he received from a colleague. The defendant worked in the financial sector. His supervisor wrote a letter to the judge, telling a story about how the defendant created a volunteer to mentor at-risk youth. He brought them into the office and offered opportunities for them to train as interns, encouraging them to do well in school and advance to college. The judge appreciated those details, and the judge said he could see the defendant’s commitment to building a stronger community.
A client of ours pleaded guilty to a crime involving child pornography over the Internet. While going through the lengthy judicial process, the defendant voluntarily attended therapy sessions twice each week. A counselor from the program wrote about the defendant’s active participation, commenting on the books that the client would read and the reports he would write about what he learned about his own behavior and the impact it had on victims. The counselor wrote about a paper the two published together in a peer-reviewed journal about their therapy sessions, and the ways the defendant worked to reconcile with society for his crime. The judge commented on the letter, saying it gave him a different perspective of the defendant because it showed real efforts to atone.
A defendant faced charges related to his distribution of narcotics. He submitted a character-reference letter from his pastor. The pastor wrote about the defendant’s family background. Several of the defendant’s family members had been incarcerated. Some of those family members stood convicted of crimes related to street gangs. The pastor wrote about how the defendant had come to him asking for help to avoid the problems at home, saying he wanted to build a different kind of life. The pastor wrote about how the defendant’s repeated requests for help to get away. The defendant wanted to escape family expectations; they wanted him to participate in criminal activities. After pleading guilty to the felony charge, the defendant returned to the pastor without excuses, but with a full commitment to transform his life while incarcerated, including abandoning relationships with family members who were committed to a criminal lifestyle. The pastor wrote about his willingness to help with ongoing support. The judge commented on the background and what he learned from the letter.
What makes the above character-reference letters different?

They offer details and memorable stories. Those stories show the judge more about the defendant’s character. Those stories help the judge make a more informed decision at sentencing.

When you’re crafting your character-reference letter campaign, think about your audience. To influence your judge, generate letters from people who will attest to what they’ve seen about you as an individual. Make sure that you review the letters. They should be consistent with your mitigation strategy. Do not make the mistake of Michael Flynn and submit a letter to a judge that would undermine your chances for mercy, or leniency at sentencing. Instead, contemplate how you can create a series of letters that show a theme. Your letters should show:

Personal stories that reveal how you strive to contribute to society
Candor about your crime and how you’ve worked to make things right
Evidence that you identify with the values of law-abiding citizens
By submitting character-reference letters that help your judge understand you, you advance prospects for mercy at sentencing.