Sentencing hearing—illustrative argument and response
Sentencing hearing—illustrative argument and response
At the time set by court, at the conclusion of trial, the question of sentencing will be heard. Counsel will have an opportunity to argue on behalf of the client at this time, and should take advantage of it. Before arguing, counsel should be familiar with the probation report, and should have discussed it with the probation officer, where this is allowed by court rules.
The following is an illustrative argument at sentencing urging that the defendant in a computer crime case not be sent to prison. It is an adaptation of the argument in a well-known computer crime case.FN77
In that case, the defendant pled guilty to committing one wire transfer of $10.2 million, and attempting another of perhaps $50 million while he was on bail. The case was highly publicized. In addition to the arguments of counsel (DC), this illustration includes sample comments by the judge (J) in response to the argument, and possible replies.
Counsel: Your honor, we have provided this court with an enormous volume of materials attesting to the fact that my client is a complex and talented individual. He is described as an original intellect, with an imaginative, creative mind. He is described as hard-working, tremendously loyal, always willing to help, generous, and extremely sensitive. From sergeants in the United States Army to blue collar workers, those who have known him or her found my client an inspiration, an uplifting influence. Someone with much to offer society. One of the letters describes my client as "the top computer scientist I know." He is, indeed, a unique individual, as shown by these materials, by the psychiatric profile in the file, and by the defendant's own letter to the court. I would suggest to this court that an equally unique and imaginative approach to sentencing him is in order.
Judge: What is so unique about this man or his offense? He had a number of opportunities to abandon his plan. He stopped several times along the way, and each time continued. Each continuation required rethinking his plans, remotivating himself, reevaluating his efforts. Each time he decided he wanted to violate the law.
Counsel: Each and every of this pitiable individual's decisions is explained by his merciless desire to defeat himself.
Judge: But doesn't that description fit most criminals? Why do you call your client pitiable?
Counsel: This is a man of tremendous capability. He was even described as brilliant, a man of unique capabilities. His acts were not free and voluntary. They were motivated by an unconscious desire for self-annihilation. Everything he did was to get himself caught, and punished, to lead him to stand before the court today. I appeal to this court to reject what might be considered a normal punishment in this case. To place him in prison would be counter-productive, given his abilities and talents. Prison could destroy him. Instead, I suggest that the court order the defendant to use his skills to educate others about the vulnerabilities of their computer security systems. He will gladly investigate others' systems and inform them about how to make the systems more secure.
Judge: If your client is blessed with intellect, skill, and education, and he has misused these gifts, why should the court reward him? It has something of the tang of unfairness to come to court and say society will lose an asset if he is put in prison. How is he going to educate others not to violate the law if he couldn't educate himself?
Counsel: This, your honor, is a golden opportunity for an advance in the field of sentencing. You yourself have written that creativity is required for sentencing decisions. Sentencing is at the very heart of rehabilitation, as you know. Putting this man in prison will not rehabilitate him, it will just make his destruction that much more likely. Professor has written that my client is a man in dire need of expert psychiatric treatment if he is to become a productive member of society. We both know that this kind of treatment will not be available in prison.
Judge: It is always thus. Once convicted the white-collar criminal says treat me differently because I have different skills. In addition to the rehabilitative ideal there is the deterrent reality of sentencing. Having your client give speeches about computer security will not have the same deterrent effect on other potential computer criminals as his spending an appropriate time in incarceration. Until he shows he can deter himself he's not going to be very effective at deterring others.