Many lawyers believe that they cannot cite helpful provisions of the Justice Manual in support of their argument and against the government. It is true that courts invariably hold that Department of Justice guidelines and policies do not create enforceable rights, but nothing prevents lawyers from arguing that relevant provisions of the Justice Manual are persuasive authority.

Defense attorney Andrew Mishlove offers five rules – one for defense counsel and four for the client – that serve as a guide to effective sentencing presentations. He writes that a persuasive sentencing presentation encompasses the client’s complete existence, which means it must address the aggravating factors and expose the mitigating factors in the context of an entire human life. How can defense counsel tell a story that puts the crime in context?

A sentencing mitigation video should be short (approximately 10 minutes) and should show the judge that the client is more than what the sentencing report says. Are there potential drawbacks? Yes. But the rewards are greater.

Over time, advocates in the capital defense arena have figured out which strategies work and which do not work. Defense lawyers in noncapital cases can learn from the strategies developed during several decades of capital representation. They can incorporate these strategies into sentencing advocacy for clients charged with drug offenses, noncapital murder, or any other crime. In noncapital cases, the offender is more likely someday to be released and returned to society. This requires more focus on development and resources for the offender that will facilitate a smooth re-entry.

Willie Herring’s case cried out for mitigation. The cry went unanswered. The 5-4 decision from the Ohio Supreme Court in Herring’s case does not break new ground. It does, however, provide important reminders about the duty of capital defense attorneys to ensure that a comprehensive mitigation investigation is conducted in every case.

Because 90 percent of all federal cases end in a plea deal, criminal defense lawyers have become sentencing lawyers rather than trial lawyers. Defense lawyers should not abandon vigorously defending their clients before juries. The authors suggest, however, that lawyers must begin to view trial preparation through the lens of sentencing.

In Federal Sentencing

Some may believe that challenging a district court's sentencing procedure on appeal is not likely to result in better outcomes because the court will simply do a better job on remand addressing arguments and explaining its decision, but still impose the same sentence. But this is not so.

An Apprendi Primer: On the Virtues of a “Doubting Thomas” Jon M. Sands, Steven G. Kalar October 2000 18 Apprendi v. New Jersey - to the surprise of many, but not to Justice Thomas - announced a “watershed change in constitutional law.” 1 The ripples of this recent Supreme Court decision are now bei

This month Jeffrey M. Gamso reviews Homeward: Life in the Year after Prison by Bruce Western.

Evolution of Federal Drug Sentencing to Compassionate Release

For John Bailey, achieving justice involved a long journey on both straight and winding roads with many obstacles along the way. But trying as it may have been, the odyssey ended by arriving at the sweetest of destinations – freedom.

This month the Honorable John L. Kane reviews Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System by Jed S. Rakoff.

Defense lawyers tell only three types of sentencing stories. These stories involve Revelation, Relativity, and Redemption. Understanding the “3 Rs” of sentencing storytelling will help the defense craft the strongest mitigation arguments and achieve better results for clients.

In December 2020, NACDL released model legislation and an accompanying report discussing “second look” legislation. The proposed legislation is a fully developed draft bill for consideration by the states.

This month Russell Stetler reviews Criminality in Context: The Psychological Foundations of Criminal Justice Reform by Craig Haney.

Courts around the United States have increasingly recognized that the coronavirus is an extraordinary and compelling reason warranting release of inmates. Several courts have heeded the call from legal and medical experts to release vulnerable and old inmates from inherently unsafe facilities.