May 2004, Page 23

DWI- Preparing for Plan B: Mitigating Punishment in DWI Sentencing
By Michael M. Hawkins; Gus McDonald

Preparing for Plan B: Mitigating Punishment in DWI Sentencing
The DWI defense lawyer that wins every case is a myth. If a lawyer is not losing DWI cases, then that lawyer is not contesting DWI cases. Often we criticize “plea lawyers” who don’t have the guts to contest cases, but the truth is that some of those lawyers have become skilled at mitigation in sentencing. Perhaps criticizing the “plea lawyer” is warranted, but there are lessons we can learn from approaching a case with the secondary (and sometimes primary) goal of minimizing punishment.

No matter how hard you fight, sometimes the government wins. As much as we maintain our optimism, every lawyer must prepare for the consequences that follow the one-word verdict. We have all been there: the cold thud echoing in the courtroom . . . it’s a knock coming from inside the jury room . . . “the jury has reached a verdict” . . . the sweaty palms, the awkward silence . . . the shortness of breath . . . the juror’s are not making eye contact . . . you stand up stiff as a board. . . look at the satisfaction on the judge’s face as he reviews the verdict . . . and then we hear it. You get that sinking feeling, something similar to the feeling of free-falling takes place while you struggle to maintain your composure for your client and your peers.

When you are inevitably hurled toward sentencing, you must always remember to pack a reserve parachute. This article will address a topic that many criminal trial lawyers don’t like to talk about: what happens when we lose.
We will also address strategies to minimize punishment when a trial is not advisable. There is no shame in devoting ourselves to developing our skills in sentencing with the same commitment we have made in developing our skills as a trial lawyer. There are methods we can learn to minimize the punishment to our clients when faced with an adverse verdict or a high-risk case.

Of course, before we focus on punishment, we must be sure that we have thoroughly investigated and exhausted our ability to fight the case. “Special Teams” is a term that can be used to describe the apparently un-winnable case.

In football, where a team’s offense or defense is in question, it is often the special teams unit that makes the difference. For our purposes, the prosecution may fumble or we may block some important piece of evidence that can change the outcome of the trial or hearing. Whether and when the decision to enter a plea or go to trial occurs does not matter. The principles governing punishment are largely the same. “Plan B” requires careful attention and commitment to assisting our clients given any outcome, and that means developing a plan for mitigation in sentencing.

Mitigation Defined
Mitigation is that which tends to soften, temper or make less harsh or severe.1 Mitigating circumstances surrounding a criminal offense are those circumstances that tend to lessen the apparent badness of the particular crime or the apparent badness of the defendant. Mitigating circumstances are not limited by the law; they may be unlimited in number, as long as they are based upon evidence introduced by either the prosecution or the defense at trial or sentencing.

The existence of any mitigating circumstance does not require proof beyond a reasonable doubt. Even mercy, sympathy and compassion are appropriate mitigation subjects for consideration in sentencing. Mitigating factors are circumstances that do not constitute a defense, legal excuse or justification for the crime, but which decrease its guilt or enormity. A mitigating factor is one that can be considered as extenuating or reducing the degree or moral culpability of the defendant, and tends to support imposition of a lesser sentence.2

Mitigating Factors Examples
1) Absence of any prior disciplinary or criminal record of the accused.
2) Accused’s extreme youth, or special conditions (health, low IQ).
3) Good character.
4) Accused’s support of dependents; family situation.
5) Victim forgiveness.
6)Cooperation with law enforcement and prosecutors. (Unfortunately, this is what prosecutors frequently call “acceptance of responsibility” as the basis for not offering the same recommendation to the court before trial).
7) Accused’s remorse and apology (including the timing thereof).
8) Rehabilitation and rehabilitative potential.
9) Restitution.
10) Accused’s conduct between the offense and the trial, including rehabilitation, cooperation, and many of the above-mentioned factors.
11) Non-judicial punishment.


Defense Attorney’s Role in Sentencing
With the historic Gideon v. Wainwright3 decision in 1963 guaranteeing a lawyer for every defendant who could not afford one, and more recently with courts defining adequacy of counsel at all stages, it makes sense that court systems would show greater interest in the sentencing process. Indeed, some of the key cases defining the right to counsel arose out of sentencing or dispositional issues.4 In 1968, the American Bar Association spoke out in favor of the defense bar’s “ethical obligation” to prepare rehabilitation plans for its clients. In 1971, the Association reaffirmed counsel’s duty to provide treatment options for sentenced offenders.5 


Preparing for Plan B: Mitigating Punishment in DWI Sentencing
The DWI defense lawyer that wins every case is a myth. If a lawyer is not losing DWI cases, then that lawyer is not contesting DWI cases. Often we criticize “plea lawyers” who don’t have the guts to contest cases, but the truth is that some of those lawyers have become skilled at mitigation in sentencing. Perhaps criticizing the “plea lawyer” is warranted, but there are lessons we can learn from approaching a case with the secondary (and sometimes primary) goal of minimizing punishment.

No matter how hard you fight, sometimes the government wins. As much as we maintain our optimism, every lawyer must prepare for the consequences that follow the one-word verdict. We have all been there: the cold thud echoing in the courtroom . . . it’s a knock coming from inside the jury room . . . “the jury has reached a verdict” . . . the sweaty palms, the awkward silence . . . the shortness of breath . . . the juror’s are not making eye contact . . . you stand up stiff as a board. . . look at the satisfaction on the judge’s face as he reviews the verdict . . . and then we hear it. You get that sinking feeling, something similar to the feeling of free-falling takes place while you struggle to maintain your composure for your client and your peers.

When you are inevitably hurled toward sentencing, you must always remember to pack a reserve parachute. This article will address a topic that many criminal trial lawyers don’t like to talk about: what happens when we lose.
We will also address strategies to minimize punishment when a trial is not advisable. There is no shame in devoting ourselves to developing our skills in sentencing with the same commitment we have made in developing our skills as a trial lawyer. There are methods we can learn to minimize the punishment to our clients when faced with an adverse verdict or a high-risk case.

Of course, before we focus on punishment, we must be sure that we have thoroughly investigated and exhausted our ability to fight the case. “Special Teams” is a term that can be used to describe the apparently un-winnable case. In football, where a team’s offense or defense is in question, it is often the special teams unit that makes the difference. For our purposes, the prosecution may fumble or we may block some important piece of evidence that can change the outcome of the trial or hearing. Whether and when the decision to enter a plea or go to trial occurs does not matter. The principles governing punishment are largely the same. “Plan B” requires careful attention and commitment to assisting our clients given any outcome, and that means developing a plan for mitigation in sentencing.

Mitigation Defined
Mitigation is that which tends to soften, temper or make less harsh or severe.1 Mitigating circumstances surrounding a criminal offense are those circumstances that tend to lessen the apparent badness of the particular crime or the apparent badness of the defendant. Mitigating circumstances are not limited by the law; they may be unlimited in number, as long as they are based upon evidence introduced by either the prosecution or the defense at trial or sentencing.

The existence of any mitigating circumstance does not require proof beyond a reasonable doubt. Even mercy, sympathy and compassion are appropriate mitigation subjects for consideration in sentencing. Mitigating factors are circumstances that do not constitute a defense, legal excuse or justification for the crime, but which decrease its guilt or enormity. A mitigating factor is one that can be considered as extenuating or reducing the degree or moral culpability of the defendant, and tends to support imposition of a lesser sentence.2

Mitigating Factors Examples
1) Absence of any prior disciplinary or criminal record of the accused.
2) Accused’s extreme youth, or special conditions (health, low IQ).
3) Good character.
4) Accused’s support of dependents; family situation.
5) Victim forgiveness.
6)Cooperation with law enforcement and prosecutors. (Unfortunately, this is what prosecutors frequently call “acceptance of responsibility” as the basis for not offering the same recommendation to the court before trial).
7) Accused’s remorse and apology (including the timing thereof).
8) Rehabilitation and rehabilitative potential.
9) Restitution.
10) Accused’s conduct between the offense and the trial, including rehabilitation, cooperation, and many of the above-mentioned factors.
11) Non-judicial punishment.

Defense Attorney’s Role in Sentencing
With the historic Gideon v. Wainwright3 decision in 1963 guaranteeing a lawyer for every defendant who could not afford one, and more recently with courts defining adequacy of counsel at all stages, it makes sense that court systems would show greater interest in the sentencing process. Indeed, some of the key cases defining the right to counsel arose out of sentencing or dispositional issues.4 In 1968, the American Bar Association spoke out in favor of the defense bar’s “ethical obligation” to prepare rehabilitation plans for its clients. In 1971, the Association reaffirmed counsel’s duty to provide treatment options for sentenced offenders.5 

In 1976, the U.S. Court of Appeals for the District of Columbia issued a seminal decision in Pinkney v. U.S.6 The court reversed for sentencing a case in which the offender’s lawyer had failed to fully explore the range of appropriate programs and services that might have aided the offender and persuaded the court to order a sentence other than prison. Pinkney seemed to say that counsel should know, explore, and recommend the alternatives whenever possible. A few years later the American Bar Association published its second edition of the Standards for Criminal Justice.7 The Commentary to the text of the standards relied heavily on the Pinkney decision.8 Today, there are few appellate court decisions which establish clear expectations for vigorous planning at sentencing.9

Effective representation at sentencing requires that the defense attorney make every effort to inspire leniency on the part of the judge and obtain a sentence that will allow the client to resume a normal productive life as quickly as possible. At least one study indicates that legal representation at sentencing for a DWI case does have a positive impact on the sentence imposed.10 Recent research suggests that certain alternatives to jail can be successful in reducing recidivism. Such alternative sanctions that have been suggested, and in some cases evaluated, include referral of drivers to treatment and education, community service in lieu of or in addition to jail, electronic monitoring, intensive supervision probation, impoundment or forfeiture of vehicles or license plates, victim impact panels, victim restitution, visits to a hospital emergency room that treats traffic crash victims, ignition interlocks, and using license plates that identify the vehicle owner as a DWI offender, among other sanctions. Many of these sanctioning concepts do not necessarily require law changes, but may be available under existing laws.11 Several studies over the last decade have attempted to determine if these alternatives to traditional sentencing actually work in reducing recidivism rates.


DWI Sentencing Studies
A judge-based program was evaluated in a small county court near Atlanta.12 This program used a combination of individually tailored traditional and alternative sanctions packaged so as to meet the needs of individual offenders, be they repeat offenders or first offenders. In addition to jail time, the court regularly sentenced repeat offenders to an electronic monitoring “house arrest” program which included random screens for alcohol. The judge-based program was reported to be more effective by a wide margin (two to one) than another sentencing program in a nearby jurisdiction that imposed the minimum sanctions.

Another program operating in Milwaukee County, Wisconsin under existing laws used intensive supervision probation for repeat DWI offenders. The evaluation showed that the program reduced a moderate alcohol-related arrest recidivism rate by about one-half, from about 11% to 5.5% after one year.13 Yet another program (in Los Angeles County, California) used a combination of electronic monitoring and home detention for repeat DWI offenders. The program reduced a low alcohol-related conviction recidivism rate by about one-third, from 6% to 4% after one year.14

A third, more recent, NHTSA-sponsored study15 examined the effectiveness of a day reporting center (DRC), a highly structured non-residential facility that provides supervision, reporting, employment counseling, education and community resource referrals to probationers who had been convicted of a felony DWI. The study found that the DRC program was no more effective in reducing recidivism than was a standard probation program in use by the study jurisdiction. Both programs had a reconviction recidivism rate of about 8 percent after two years. However, the study found that the DRC program was more helpful than standard probation in assisting in the reintegration of the offenders into society and provided correctional services at a significantly lower cost than jail.

Another alternative sanction that has been proposed but not evaluated for DWI offenders is the use of shock incarceration or “boot camps” in which rigid military discipline is imposed. A recent review of such programs recommended that effective treatment regimens should “include substance abuse education and treatment programs involving psychotherapeutic-based interventions, such as individual and small group therapies, with a focus on multi-modal approaches that are relevant to the offender population.”16

Victim Impact Panels
The use of victim impact panels as an alternative sanction was evaluated in 1995.17 A victim impact panel (VIP) was defined as “a group of three or four persons who were seriously injured or whose loved one was killed in a DWI-related crash.” The panel members present their personal stories orally to DWI offenders who are ordered by the court to attend the VIP. This study compared the pre-panel DWI recidivism rates with the post-panel recidivism rates of over two thousand DWI offenders who attended the VIPs in Oregon and California. The study also compared these rates to the rates of age-sex matched control groups of drivers. The control subjects were convicted of DWI in the same states at the same time period, but were not ordered to participate in the VIP. In addition, pre- and post-panel DWI convictions were also studied for 683 drivers who were ordered to attend the VIP but failed to do so (no-shows).

The results showed that, although in Oregon the VIP attendees had a lower rate of recidivism than their matched control group, the recidivism rate of the attendees was not different than that of either those who were ordered by the court to attend the VIP, but failed to do so (no-shows), or the age-sex matched control group for the no-shows. In California, there were no differences in recidivism rates between the VIP group and either the no-show group or the two control groups. Other analyses singling out specific age groups and distinguishing males from females suggested that VIPs may be more effective for offenders of age 35 years or more than for offenders of other ages.

The idea of removal of an offender’s vehicle (or access to it) as an alternative sanction has been around for some time, but has not been used to any great extent until fairly recently. Several variations of this basic theme have been studied. In a 1995 study of California’s impoundment laws relating to suspended or revoked drivers, the author “failed to find compelling evidence of a general deterrent impact of vehicle impoundment/forfeiture in California”. This study examined the effect of the impoundment law on drivers who had been suspended or revoked for any reason, not necessarily DWI. 18

An Ohio study evaluated the effects of a variation on the impoundment theme, temporary vehicle impoundment and/or immobilization, in two counties.19 The period of immobilization provided by the Ohio law is 30 days for the first DWS offense, 60 days for the second and vehicle forfeiture for the third DWS offense. Second DWI offenders are subject to 90 days, and third DWI offenders to 180 days immobilization—and the vehicles of fourth offenders are subject to forfeiture. The law applies both to the vehicle owned by the offender and, if the offender was driving a vehicle owned by someone else, to that vehicle as well.

The study found that impoundment decreased recidivism by large percentages both during the period of impoundment and after the period of impoundment. For repeat offenders with one prior DWI, the reduction in DWI offenses was 80 percent during the impoundment period and 56 percent after the impoundment period. For repeat offenders with two prior DWI offenses, the reductions during and after the impoundment period were 56 percent and 58 percent, respectively.


Ignition Interlock Devices
Since the introduction of the first Guardian Interlock device in 1985 nearly 200,000 DWI offenders in more than 25 states have been monitored under the Guardian Responsible Driver Program. According to their website, during this time Guardian has amassed almost 1 million client months of recidivism data. Guardian’s reports that its technology and approach to offender monitoring has been the subject of every independent study of BAIID’s (breath alcohol interlock ignition device).

Many of the sanctions that have been studied address different sentencing purposes. For example, jail is for retribution and the protection of society. Alcohol counseling is for rehabilitation. Some sanctions serve more than one purpose. House arrest programs, for example, provide a combination of punishment and specific deterrence.

Five Reasons for Sentencing
Society recognizes five principal reasons for the sentence of those who violate the law. The weight given to any or all of these reasons, along with all other sentencing matters in the case, almost always rest solely within a judge’s discretion. Counsel can weave any or all of these reasons for sentencing throughout their sentencing case and argument.
1. Rehabilitation. Also called correction or reformation, under this theory, society punishes the convicted criminal by giving him appropriate treatment in order to rehabilitate him and return him to society.
2. Retribution. Also known as punishment, revenge or retaliation. This theory inflicts suffering on the wrongdoer as revenge or retaliation against the wrongdoer.
3. Protection of Society. Also called restraint, incapacitation, or isolation. This notion assumes that society may protect itself from people deemed dangerous because of their criminal conduct by isolating them from society.
4. Preservation of Good Order and Discipline. The focus here is to maintain the confidence in command and obedience to orders that is the key to mission accomplishments.
5. General and Specific Deterrence. General Deterrence, also known as general prevention; this theory holds that the sufferings of one criminal, for his crime will deter others from committing future crimes, lest they suffer the same unfortunate fate. Specific Deterrence, also known as prevention, this theory aims to deter the criminal himself from committing further crimes by providing an unpleasant experience he will not want to endure again.

Most sentences in a DWI case will involve some aspect of each of the five reasons for sentencing. The criminal trial lawyer that stands in the arena and fights for his client must prepare himself for the possibility that the jury or judge may not agree with what he or she considers justice. With a client’s liberty at stake, there is perhaps no better time to be reminded of the adage “fail to plan-plan to fail.” Part of giving sound advice to a client means that sometimes even the best trial lawyer must come to grips with the evidence and the pre-trial rulings of the court and advise a client that a trial may not be in his or her best interest. Whether the finding of guilt is contested or admitted, planning for mitigation starts as soon as you are hired.

1. Be familiar with the penalties authorized or mandated by statute as well as the purpose of various sanctions. Also be familiar with the available alternatives to fines and imprisonment.
2. Be familiar with statutes that restrict or expand a judge’s sentencing power.
3. Have your client evaluated, and if recommended, start your client in a rehabilitation program. The judge may look more favorably upon a defendant whose substance abuse has been evaluated, and who has taken steps to address the problem.
4. Evaluate prior convictions and challenge them in order to prevent the judge from enhancing punishment when imposing sentence.
5. Send as much favorable information as soon as possible to the court officer who reports to the judge on the client’s actions. Presenting a sentencing report to the court officer personally may be helpful in some instances. Sentencing reports can be invaluable and will be discussed in detail below.
6. Inform third-party sources (employer, spouse and character references) that they are likely to be questioned about the defendant by an officer of the court or the judge.
7. Attempt to discover the sentencing patterns of the judge.
8. Consider whether to include a detailed recommendation as to imposition of jail time or a fine in the written sentencing report.20

How You Can Make a Difference
Be proactive. Commit yourself to finding creative alternatives to traditional punishment. For example, in a recent DWI vehicular homicide case, the client, a young woman with no prior record, went to several local high schools to talk to the students about drinking and driving. The impact on the students was significant and unique – here was a person near their age who had caused the death of another as a result of DWI, and was awaiting a prison sentence that had not yet been imposed. The process was very therapeutic for the defendant, and the judge departed from the State’s sentencing recommendation by 40 percent.

Have a plan and resources. Create a roadmap for your client that may include evaluation, counseling, community service, payment of restitution, etc. Be familiar with local alcohol and drug counselors. Keep a list of evaluators and service providers for your client. Keep a list of organizations that offer community service opportunities.

Monitor client progress. Each time you have contact with your client, inquire about where he is on the road map and if he needs additional resources to accomplish the mitigation goals that you set together. Where available, obtain copies of written evaluations and progress reports.

Tactical Considerations When There Is a Victim or Victim’s Family
Bond Hearing or Preliminary Hearing. In a serious injury or fatality case, this is an opportunity to take the sting away early. Since it is likely that family members of the victim will be present, encourage family members of your client to attend. Many cases takes months, if not years, to resolve, and humanizing your client at the earliest opportunity will go a great distance toward quieting the outcries for a lengthy prison term.

Humanizing your client. Commit yourself to learning more about your client than you have in the past. Learn about his upbringing and family life, his education and his work. The more that you can come to identify with your client as a human being, the more persuasive you will be when you tell the judge about him. Body language is important. Reach out and touch your client on his shoulder if you are comfortable with it. If you are not, it will show. Use your client by his name in every instance. He is not the defendant, the accused, or my client, he has a name. Use it.

Evaluating the personalities. Serious injury and death cases are very emotional. In the same way that people mourn a loss differently, so too will they react to the criminal justice process associated with it. Sometimes it is a grandmother or a brother that is most vocal when you least expect it. Religion often plays a role in how a person approaches forgiveness. Do your best to evaluate the other side, whether it is a victim or a victim’s family, and consider how best to address the emotional aspects of the case.

Restitution. If your client has the ability to pay medical bills or for damage done to property prior to court, it will go a long way toward toning down a victim or victim’s family members address to the court. Monitor the progress of any insurance claims and inform the judge of their status.


Other Tactical Considerations:
Creating a sentencing report

Creating a sentencing report is an excellent way to assure that you are prepared for mitigation. It requires planning and consideration of many factors, and can serve as a guide in the presentation that you make to the court at the sentencing hearing. Some things that a sentencing report should include:
Details of the offen. A summary of the charges and the evidence.

Defendant’s explanation. Not a statement, but a summary of the defendant’s version of the events that took place, including any mitigating factors.

Weaknesses in the state’s case (where appropriate). For example, sometimes including an accident reconstruction report that shows the accident was unavoidable or that the other party committed a traffic violation can be helpful.
Defendant’s background. Include any favorable information along with an explanation of any unfavorable information. Be sure to address:
Personal and family history

Education

Marital and family status/home conditions/finances

Employment

Religion

Health

Family, employers, character references. Letters from family members, friends, employers and co-workers are nothing but beneficial. The more you can do to humanize your client by painting a picture of his as a father, son, husband, employee, etc., the more difficult it will be for the judge to disregard your suggestions for alternatives to incarceration.

Prior convictions. Challenge any that should not be considered. Address those that the court will consider, no matter how damaging. Consider asking you client to write-out an explanation of any prior offenses and determine whether to present evidence of mitigating circumstances related to them.

Acceptance of responsibility. Particularly where the case is not contested, a defendant’s acceptance of responsibility often provides a significant bargaining ship fro the defense in sentencing. Showing that restitution has been paid, that your client is in counseling, and where appropriate an apology for his actions also can have an impact on how vocal the victim or victim’s family is at the sentencing hearing.

Restitution/Satisfaction letter from plaintiff’s counsel. If there is a civil action associated with the events that gave rise to the criminal charges, showing that your client was insured and has cooperated with the civil proceedings similarly can soften the impact that the injured party can have on the sentence.

Rehabilitation and Treatment Reports. If you client has successfully undergone in- or out-patient counseling then include any certificates of completion along with an explanation of the program. If your client remains in ongoing counseling, then include a letter from his treatment provider outlining the remaining program. Better yet, have your client’s counselor and sponsor at the the sentencing hearing to answer any of the judge’s questions and to speak on your client’s behalf.


Evaluating Treatment Options
Inpatient and aftercare. Where there are repeat offenses, oftentimes in-house treatment is recommended. Obtain as much information as possible (brochures, treatment outlines) of the rehabilitation program as they will provide. Is outpatient treatment is called for, do your best to keep up with your client’s progress. There are some alcohol counselors who will report attendance back to the attorney on a weekly or monthly basis (by agreement with the client). If a client is missing meetings or sessions that are part of a treatment outline, a meeting in your office to get back on track might be warranted.

Alcoholics anonymous journals. Some courts impose AA attendance as a condition of probation and provide a log sheet to verify attendance. Consider suggesting your client begin using a journal to summarize the topics discussed at each AA meeting. Of course AA is confidential and names or other identifying information must be avoided. Suggest that the client focus on the general topic of discussion (i.e., the eleventh step, dealing with others who still drink) and give their own thoughts. The end result over a period of months turns into an impressive book of personal thoughts over the course of one person’s recovery. It can have a very powerful impact, and should be shared only with the court and DA at sentecing, so as not to become a part of any public record.

Antabuse or other medical treatments. This should be left to medical professionals. If prescribed, provide information to the court that your client has been the medication aspect of his treatment program.

Home Monitoring. Consider voluntarily placing your client on a home monitoring system, including random screens for alcohol. If your client is successful over a period of time, he will have demonstrated that house arrest is a viable and effective alternative to lengthy and expensive incarceration.

Community Service. In some states community service is a mandatory component of a DWI sentence. Why not get credit for it and use it as a bargaining tool by doing it ahead of time?


Sentencing Hearing
Appearance. Your client should dress appropriately and comfortably. If he is used to wearing a suit, then he would likely be comfortable in it in court. If your client is a laborer and owns one suit that he keeps for weddings, funerals and sentencing hearings, consider having him wear a collared shirt and slacks. For female defendants, dress conservatively, but comfortably.

Defendant’s statement. In many cases, the first time that a victim or the victim’s family may hear the defendant speak is at the sentencing hearing. There is obviously no requirement that the defendant make a statement, but there are many judges who take a defendant’s statement into account significantly when imposing sentence. A well-thought out statement that is sincere can make a difference whether it is read or spoken at the sentencing hearing.

Your client likely does not have the powers of persuasion and effective public speaking that you have. If your client is not well-spoken, consider having him write what he would like to convey to the judge and to others in the courtroom and have him read it. There is nothing unethical about you assisting your client in editing the statement if you believe that it contains harmful material that might be against his best interest. Remember that remorse is a powerful mitigating factor, and most judges want to know that the defendant before them feels some remorse for his actions.

Although it is not required, the defendant has the right to be heard at sentencing. It is important to be familiar with the constitutional and statutory rights that every defendant has with regards to the sentencing process.

Sentencing Rights
In North Carolina v. Pearce,21 the Supreme Court used the Due Process Clause to protect the right of a convicted defendant to appeal by trying to reduce the fear of vindictive sentencing should he/she win a reversal and retrial. Pearce held that following a successful appeal, a harsher sentence would have to be justified by a statement of reasons on the record based upon the accused’s conduct after the original sentencing. Another conviction during the period between the two sentencings has been deemed a sufficient reason for a higher sentence.22 Relying upon state constitutional provisions, several courts have broadened Pearce rights. For example, Alaska flatly rejected the rule that post-reversal misbehavior can be used to justify a harsher penalty.23 Other legal issues are highlighted and summarized in the box below:
Buchanan v. Angelone, 522 U.S. 269 (1998) (holding that jury need not be instructed specifically on particular statutory mitigating factors as long as jury is instructed that all mitigating evidence should be considered)
Delo v. Lashley, 507 U.S. 272 (1993) (upholding trial court’s refusal to give instruction in sentencing phase that jury could consider petitioner’s lack of significant prior criminal activity because petitioner presented no evidence of prior criminal history and Constitution does not obligate court to give mitigating circumstance instruction when no evidence offered to support it)
Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding sentencing court’s refusal to consider defendant’s difficult family history as mitigating factor violates Lockett).
McKoy v. North Carolina, 494 U.S. 433 (1990) (each juror must be permitted to consider and give effect to mitigating evidence).
Penry v. Lynaugh, 492 U.S. 302, 319-28 (1989) (instructions unconstitutional where they did not give effect to mitigating evidence).- Skipper v. South Carolina, 476 U.S. 1 (1986) (unconstitutional to preclude evidence of defendant’s good behavior while incarcerated).
Eddings v. Oklahoma, 455 U.S. 104 (1982) (sentencer cannot refuse to consider any relevant mitigating evidence)
Green v. Georgia, 442 U.S. 95 (1979) (unconstitutional to exclude relevant and reliable hearsay evidence at sentencing).- Lockett v. Ohio, 438 U.S. 586, 602-08 (1978) (statute cannot preclude sentencer from considering mitigating evidence).
Gardner v. Florida, 430 U.S. 349 (1977) (confidential sentence report violates due process; defendant must have opportunity to deny or explain information used at sentencing).
Geary v. State, 114 Nev. 100, 952 P.2d 431 (1998) (specifying jury instruction on finding and weighing of aggravators and mitigators).
Harris v. State, 106 Nev. 667, 671, 799 P.2d 1104, 1106 (1990) (As long as state must prove aggravating circumstances, it is constitutional to require defendant to prove mitigating circumstances)
Witter v. State, 112 Nev. 908, 923, 921 P.2d 886, 896 (1996) (defendant has no right to argue last), cert. denied, 520 U.S. 1217(1997).
Gallego v. State, 101 Nev. 782, 790, 711 P.2d 856, 862 (1985) (Defendant’s right to allocution).

Preparing for sentencing might seem to fly in the face of preparing to contest the case, but it is a necessary part of being a superior advocate. By becoming familiar with the law regarding mitigation and committing ourselves to being proactive in developing alternatives to incarceration, we can better serve our clients in the event that there is a conviction or a high-risk case. Plan B is just that — the necessary action we must take where Plan A fails. We hope to never have to use the reserve parachute, but it also nice to know that it is there, and ready, when we need it most.

Notes
1. Webster’s Ninth New Collegiate Dictionary, Merriam - Webster, Inc., publisher 1983
2. Dr. Charles Frost is a professor and Chair of the Social Work Department and a former mental health director and psychotherapist
3. 372 U.S. 335 (1963).
4. Mempa vs. Rhay, 289 U.S. 128 (1967).
5.The American Bar Association Project on Standards for Criminal Justice, American Bar Association Advisory Committee on Prosecution and Defense, Standards Relating to Providing Defense Services Approved Draft, Chicago, American Bar Association (1968, 1971)
6. 551 F.2d. 1241 (D.C. Cir. , 1976).
7. American Bar Association Standards for Criminal Justice (2d ed., 1980)
8. Unfortunately, the Pinkney case itself failed to strike a chord among the nations higher courts, and became one of those reasoned, broadly-stated decisions which, while never reversed, is seldom applied to guide trial court sentencing proceedings.
9. The Sentencing Project, An introduction to Defense Based Sentencing, Malcom C. Young (1996).
10. Blumenthal & Ross, Judicial Discretion in Drinking/Driving Cases: An Empirical Study of Influences and Consequences, in Alcohol, Drugs & Traffic Safety 755-57 (1995) see also: Drinking and Driving Litigation Criminal and Civil, § 9:2, Flem K. Whited and Donald H. Nichols, second edition, published by West Group (1998).
11. Repeat Offenders and Persistent Drinking Drivers in the U.S., James Hedlund and James Fell, NHTSA, NTS-20, 400 Seventh St SW, Washington, DC 20590, USA
12. Jones, RK and Lacey, JH. (1998b). Evaluation of an Individualized Sanctioning Program for DWI Offenders. DOT HS 808 842. Washington, DC: National Highway Traffic Safety Administration.
13. Jones, RK; Wiliszowski, C; and Lacey, JH. (1996). Evaluation of Alternative Programs for repeat DWI offenders. DOT HS 808 493. Washington, DC: National Highway Traffic Safety Administration.
14. Jones, RK; Wiliszowski, C; and Lacey, JH. (1996). Evaluation of alternative programs for repeat DWI offenders. DOT HS 808 493. Washington, DC: National Highway Traffic Safety Administration.
15. Jones, RK and Lacey, JH. (1991a). Review of the literature evaluating the effect of countermeasures to reduce alcohol impaired driving (1980-1989) Volume I. DOT HS 808 023. Washington, DC: National Highway Traffic Safety Administration
16. Cowles, EL; Castellano, TC; and Gransky, LA. (1995). “Boot Camp” drug treatment and aftercare interventions: An evaluation review. NCJ 155062. Washington, DC: U.S. Department of Justice, National Institute of Justice
17. Shinar, D., and Compton, R.P. 1995. Victim impact panels: their impact on DWI recidivism, Alcohol, Drugs and Driving. vol. 11, no. 1: 73-87.
18. DeYoung, DJ; Peck, RC; and Helander, CJ. (1997). Estimating the exposure and fatal crash rates of suspended/ revoked and unlicensed drivers in California. Accident Analysis and Prevention 29(1): 17-23.
19. U.S. Department of Transportation National Highway Safety Administration “Alcohol and Highway Safety”, A Review of the State of Knowledge (2001).
20. See Flem K. Whited, III, “Sentencing”, section 13:2 in Drinking/Driving Litigation Criminal and Civil Trial Notebook, (2000-2001 Ed.) published by West Group.
21. 395 US 711 (1969)
22. Wasman v. Untied States, 468 U.S. 559 (1984)
23. Shagloak v. State, 597 P.2d 142, (1979)


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