Defense Lawyers Can ‘Rewrite’ the Sentencing Guidelines, One Case at a Time

Carlton Fields

Over 90 percent of federal defendants plead guilty, and 83 percent of those who go to trial are convicted on at least one count.1 In most indicted federal cases, the question is not how to persuade a jury at trial, but how to convince a judge at sentencing. Specifically, the question is how to obtain a sentence below the range recommended by the Sentencing Guidelines. The primary answers are the traditional ones: put the focus on the person, not just the crime; tell the judge the rest of the story. But those sound approaches can be complemented and enhanced by two things that almost no defense lawyers use: the U.S. Sentencing Commission’s data on actual sentences, and precedents “hidden” from standard legal search engines.

Originally published in NACDL, The Champion - April 2021.

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Carlton Fields

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