How to Avoid Jail at Sentencing
Your Fate Is Not Just in the Judge's Hands
You are in a bind — a serious one. You have been arrested, gone before the court, spoken with your attorney, and reviewed the plea offer from the District Attorney. You decided that even though it was a plea to the charge or that "sentencing is in the discretion of the court" that it was in your best interest to plead guilty rather than face trial and potentially get something much worse if you lose. You decided to ask the court for mercy and accept accountability for your actions. Perhaps there has been a trial and you lost. What can you do to improve the situation?
This situation is not uncommon in our legal system. Even if you have a plea bargain there are things that can happen that will give the judge cause to throw it out the window. If you want to save your bacon, there are some things you can do to help persuade the judge to not put you in jail or prison.
This Essay and You
This essay is not legal advice. In fact, most of it is simple common sense. If you are in the midst of a life-altering legal struggle get a lawyer. He/she will tell you if any of the advice in this article applies. It is important to listen to your lawyer. If the contents of this essay and your lawyer are at odds, then disregard this article. Follow the advice of your attorney and forget you ever read this. I do not guarantee that any of this information will help you in any way. In the end, only your lawyer can help you, and I am not your lawyer.
What to Do After the Plea
Fist off, pay attention to those moments after you say "guilty." These are important moments. The judge or clerk will tell you:
- when you are to return to court
- how much money you have to raise in fines, surcharges, and restitution
- that there will be a pre-sentence investigation (at least in New York)
- he/she will advise you that if you fail to appear at sentencing or your pre-sentence interview, he or she can sentence you, even in your absence, to the maximum allowed by law.
You may be provided contact information for the probation department, community service, or other programs that you must attend as a condition of your sentence. You will likely have to provide information so that the probation department can contact you to set up a meeting.
These are all things that are of the utmost importance if you want to put your best foot forward going towards sentencing. Pay attention and follow the instructions provided by the people doing the talking.
Things to Do While Waiting for Sentencing
Where I practice it takes eight weeks for the pre-sentence investigation (PSI) to be completed. This may seem like a long time, but it isn't. You may want to consider the following if you are incarcerated during this time frame as there are steps you can take even in jail. However, if you are out on bail or released on your own recognizance, you simply must be proactive during this time frame. What should you be doing?
The PSI Interview
First off, don't miss your meeting with probation. This will for sure sink your ship should you forget. The report won't be on time and the probation department will advise the court that you didn't show up. On your next court date expect bail to be set or raised, and depending on the warnings given and the severity of your case, the judge might just throw out any deal you have made then and there. If you fail to show up at court, it will only get worse. Running translates to an ever-increasing amount of jail. There is never a good time to go to jail, so you might as well get it out of the way. If you stand any chance of lessening your sentence, you better show up with bells on.
When you go to your meeting, be candid and forthright with the Probation Officer (PO) by answering the questions honestly. You are already guilty, so it is time to fess up. This is the first part of accepting responsibility. Fail to do this and warning lights will go off in the PO's head, and they could tell the judge in the report that you are not a likely success on probation because you don't think you did anything wrong. Accepting accountability is the first step in reform. If you can't take that step, a court might feel that the best option is to not rehabilitate you, but rather, to keep you out of society.
Lastly, in regard to the interview (and future dealings with the probation department), be on time and be polite, contrite, humble, and submissive. Also, try to be proactive in trying to anticipate what they will ask you to do. If you need to reschedule, call as far in advance as possible. If you miss your appointment, call immediately day or night and leave a message. If you do not hear from the department within two or so weeks of your plea, contact them to see if you are ready to be scheduled. Keep them updated on where you are residing and other contact information. These are the people who will decide whether to say nice things about you or bad things about you, and if you are sentenced to probation, they will be the ones to say whether you are worth working with further or whether they think the judge should revoke probation and sentence you to jail. Make a good first impression.
Let's talk about substance use. This topic will come up, especially if the crime you admitted to was related to alcohol or drug use in any way. Tell the PO everything about your issues here including your successes and failures in treatment. It is important for you and for the PO to see this as an unfortunate circumstance, but one that you are learning from and that you are trying to improve.
Let's be clear, whether you think so or not, that if you have a history of substance abuse or addiction, or if your offense is related to illegal substances or abuse of legal ones, you have a problem. Period. You may disagree, but everyone in the criminal justice system will fail to see your cogent and well thought-out arguments. Remember, admitting that you have a problem is the first step to recovery and failure to admit it is a sign that you aren't ready. Not being ready for recovery equals jail in the justice system. You have a problem and you are going to work on dealing with it so that you won't end up in the same spot again. The probation department will, if you are sentenced to probation, make you get an assessment or evaluation and make you follow through with the agency's recommendations. Failure to do so will likely result in violation and you may potentially be sent to jail.
Accept That You Will Need Treatment
In regard to treatment, you do know it is coming, right? Get used to the idea. It is in your future whether you can afford it or not — or whether you like it or not. The courts and probation believe that recovery comes first, no matter what. If you lose your job because you go to inpatient or the frequency or times of your meetings are inconvenient, that is unfortunate, but the judge sees it as necessary. With that said, most agencies will work with your schedule and your financial resources. For example, they may help you get insurance benefits from the state, put you on a payment schedule, or reduce the fees in accordance with your income. The courts know this. The fact that you cannot pay is an old but utterly useless excuse no matter how valid it may be to you. Just get the treatment done. Failure to follow through is a huge red flag that to a sentencing judge. Don't give him a reason to doubt your commitment.
Start Treatment Before Your Sentencing
"Why aren't you in treatment now?" The judge wants to hear that you want to get better on your own, not that you have to be forced to do it. People who don't admit their culpability don't believe that they have a problem that needs fixing and don't believe they need to be told to deal with their issues. These people are not good candidates for alternatives for incarceration. If you are looking for a suspended sentence (meaning that you have no jail or probation but that jail is held over your head on certain conditions) you must show the court that there is no reason to supervise you because you are a responsible self-starter who complies without being told to.
The bottom line is that you need to get that ball rolling if you have not already. It can take weeks to get set up with a treatment agency. Courts want to hear that you have had a few meetings at least.
Speaking of meetings, if you have a substance abuse problem, regardless of your feelings about 12-step programs, now is the time to start going. How many should you go to? As many as possible. Look up where self-help groups are being held and go.
Mental Health Treatment
If mental health is a factor in your situation, the same principles apply. Get the support and help you need to cope. This is a difficult time and you will need those supports to stay in an ideal frame of mind. If you already have a psychologist or psychiatrist, fill them in and ask them for assistance. If you do not have these supports, get them as soon as possible. Suffering from a mental illness can provide a social and scientific excuse for your behavior that will potentially reduce your sentence if, and only if, you are seeing someone about it and working actively on it. You need to get involved in your program and know enough about the therapy strategies so that you can show everyone that you really are engaged and have plans going forward.
Additional Factors That Will Help You
- If you have a job, keep it if you can.
- If you are in school, keep your grades up and get copies of your records.
- Keep up-to-date with your family responsibilities. This is not the time to slack at anything.
- If you have friends with nice job titles or employers with whom you are comfortable asking, get letters of recommendation.
- Do some community service in your spare time. There are plenty of opportunities at homeless shelters, soup kitchens, ASPCA, churches, and the salvation army. Do something, especially if you are unemployed.
- Give your lawyer plenty of good things to say about you. Give the PO plenty of good things to write about you. We can't make this stuff up, so you have to create it for us.
The Big Day
So here we are, the day of sentencing.
Be there and be on time. Better yet, be early so that you can talk with your lawyer if you haven't spoken with him or her recently. You need to get the rundown on the situation. The attorney can fill you in on the results of the pre-sentence investigation, let you know what mood the judge is in, and tell you about what to expect. If probation is likely, the two of you need to go over what the terms will be. Show up with your documents, letters of recommendation, updates from your treatment agency, or anything else you might think is helpful. This takes a bit of time. Be early to your sentencing or you could be late to your own funeral.
What to Wear
Wear something nice. Don't wear a Bob Marley t-shirt. From experience, I can tell you this is a bad idea. Don't wear a t-shirt with a marijuana leaf or an anarchy sign or pentagram. In all likelihood you are not a political prisoner so this is not the time to make a political or social statement. These are shirts that give the finger to the judge. Can we agree that giving the judge the finger when he is deciding if you should go to jail and for how long you should go for is not a good idea? In fact, don't wear a t-shirt. If you have no other options, choose one without a print on it — plain is good. This isn't a time for you to be making a statement on the system or show everyone the cool band you like. Ask yourself what message your clothing conveys.
Dress as nicely as possible, but do not wear a tuxedo. I have seen this and it doesn't help. It is also harder to get off as they process you on your way to jail. Do wear a dress shirt and khakis, if possible. You do not have to dress to the nines where I practice, but a good bet is to check out what the attorneys are wearing and go one level down on the dressiness scale. You may not need a blazer or sport jacket but a tie never hurts. I suspect that judges like to know that you know how to tie a tie.
Remember, whether you have a tie or not isn't going to utterly change the playing field. If you are a jerk, it won't shield you from observation that you are, in fact, a jerk. Little things add up, however, so appearing well put together can't hurt. You want to look like a docile worker bee because docile worker bees contribute to society and stay out of trouble. Remember, this is the time you want to be a conformist. If you have doubt about the practice in your area, remember to ask your lawyer.
The Sentencing Process
The judge will recite the case information and then ask the lawyers to speak.
The prosecutor will say his piece first. It may be unflattering, a misrepresentation, or even worse: untrue. It may make you angry, but don't let it show. It is the prosecutor's job to say awful things about you, and he may actually believe them. Listen to the arguments the prosecutor is making and think about how to handle them. That does not mean argue with them. Remember that you are accepting accountability. You won't get far by arguing that the prosecutor is wrong about you or what you admitted to doing. Rather, remember that you have admitted guilt, so the prosecutor may be justified in running you down. You might even want to agree with him when you get a chance to talk. You could agree and then throw in a "but." If it is true (more on that in a moment) you can say things like you have learned from your mistakes, are on the road to reforming your actions, working on improving and being a contributor to society, and that you are sorry for all of the terrible things your actions led to. State what you have done in the meantime to get better. Tell the judge that you are willing to follow the court's or probation's directives and rules. It will be difficult but you are up to the task.
Your lawyer is going to say nice things about you — we get paid to and the judge knows this. The judge will be listening carefully for signs of BS. The best lawyers BS without the court realizing it, and the court knows this too. The bottom line: the judge is going to take your attorney's arguments with a grain of salt because he/she knows the real story is going to come from you. In the end, it is up to you to keep your ass out of the fire. Listen to your attorney, look for the judge's response, and adjust accordingly. Pick up on your lawyer's themes, if possible, and use it to your advantage.
Tips for Speaking in Front of the Judge
- Be yourself. Well, at least be the best version of yourself. If you are not good at public speaking, say so. If you are nervous, admit it (you will be). You don't do this every day, at least I hope not, so you have some leeway. Don't hide the fact that you are vulnerable. Judges like to know they are reaching you with their wisdom.
- Do not lie, minimize your actions, or make excuses. You must apologize and accept responsibility. You will not be well served by your attempts to weasel out of it. Answer direct questions directly.
- Keep your emotions in check. You can handle this. Anger is your enemy. Remorse is your friend, but in moderation. Woeful tears of anguish copiously flowing forth in a never-ending stream of guttural muffled sobs rarely work to stay the hand of justice. If you are going to cry, cry, but don't make a production out of it. You are not up for an Oscar. The key to shedding tears is that they are authentic and heartfelt. Fake ones won't fly.
- The judge may ask you when you last used alcohol or drugs. Be honest. If it was recently, you must acknowledge your relapse, speak about moving forward with treatment, and talk about what you have done already.
- Be consistent. If you tell the interviewer at probation one thing, don't say something different or backtrack at sentencing. Own your past. If you have been revoked on probation before, don't hide from that — it's in the PSI report. Tell the court why things are different now.
- The judge may ream you out. After all, you plead guilty because you are, in fact, guilty of some pretty nasty things. You likely deserve a scolding and a stern warning to change your ways. Accept it. Once again, don't argue, but rather, acknowledge your failures. Don't make excuses, don't debate, don't minimize, and don't blame other people. And whatever you do, do not blame the victim.
Children in Court
Don't bring your kids to court. They will be miserable, fidgety, inappropriate, and unruly (even the good ones). More importantly, in the end, they may be traumatized if things don't go your way.
Judges can also be temperamental. It may have to do with having to put up with this crud all day. You don't want to annoy the person making the call on your freedom, so don't poke the judge with a stick (your sobbing child is a very sharp stick).
Not only can children be disruptive, through no fault of their own, but the court may view this as a bald-faced attempt to manipulate. When you bring your kids, whether you mean to or not, you are saying, "Don't put me in jail because I have kids." This is a legitimate argument, but it is not a great idea to make it by holding your crying child on your hip at the bench. It can look like you are using the child as a pawn. Don't make the judge feel guilty for doing her job. You will find the judge will resent this and respond accordingly. For example, after you are taken into custody, the court will cite your irresponsibility, lack of foresight, and cruelty to your child for making them watch you get carted off in handcuffs. Next, the clerk may call social services to come pick up the kid because there is no one else around to take care of the child. While you are getting used to your new home you may receive a letter from Child Protective Services stating that your actions are being investigated. This is one way to define a bad day.
If you are going to argue that your kids need you, don't be surprised when the court responds that you should have thought about that before you committed the crime. Be ready for this line of reasoning. To give the judge a good impression, tell him/her that you have failed your kids, but you are devoted to learning from that so you can be a better parent, and you want the chance to do that.
This Is Not a Party
Lastly, and perhaps it goes without saying, but must be said based on experience: do not show up under the influence. Don't show up drunk or stoned. I know it can be difficult when one is under stress and has an addiction, but now is not the time to let it get the upper hand. The court officers will tell the judge you are a mess, that you smell of weed or alcohol, that you passed out in the waiting area, etc. You need your wits to get through this and being stoned at court leaves a bad impression. This goes for any court appearance. If the case isn't settled yet, it is a surefire way to get your bail revoked and get sent to the county jail pending further proceedings. At sentencing, it is a one-way ticket to the maximum sentence allowed by law.
A further admonition: please don't have a going-away bash the night before. A hangover is an awful way to start a jail sentence, and if you oversleep because of your overindulgence, the sheriff will be more than happy to roust you from your slumber. Meanwhile, the judge, who has been twiddling her thumbs for the last two hours, has been put into a sour mood. That does not improve your odds.
Communicate and coordinate with your lawyer and listen to the advice they give you. Each situation is different so you will need to know the specifics in your case. Use your lawyer's experience and expertise to help you.
These pointers are useless unless you mean what you say and say what you mean. You must have concrete signs and behaviors to show that you are serious and not just blowing smoke up the court's posterior. The judge will likely have heard all of this before. People who have been through treatment know what all the right things to say are. The judge can tell when those time- honored phrases are legitimately uttered, and he/she will be a good judge of sincerity. If you are trying to pull the wool over his or her eyes, they will know it. If you really have no intention of staying out of trouble, quitting illicit substance use, or changing your ways, you don't want to be on probation anyway. You will most likely violate the rules and you will, in all probability, get a worse sentence at that point than you would have at initial sentencing. Your best bet is to acknowledge your mistake, apologize to whomever needs an apology, and prepare for a jail sentence. BS will get you caught in a lie and lies equal additional jail time. Only sincerity will be rewarded. You may think you are an all-star BSer, and sure, it might work on your mom or your boss, but their job doesn't require them to listen to it day in and day out and figure out who is full of it.
With preparation and proactive measures, perhaps you can save yourself from a harsh sentence or at the very least reduce your time of incarceration. Good luck!
This essay is not to be construed as legal advice and does not constitute the basis for a legal relationship or representation between the reader and the author. The author does not guarantee the effectiveness of any method discussed herein or that it may be applicable in any individual case or legal proceeding. Always consult with an attorney prior to utilizing this or any other legal information as individual circumstances require individualized counsel. Use of any of the contents herein is at the sole risk of the reader. Utilization of the contents of this article without the advice of an attorney could potentially result in negative consequences or an elevated sentence. The author is not responsible for the outcome of any reader's legal proceeding.
This article is based on the proceedings and laws in the State of New York. The laws of other jurisdictions may be considerably different and the contents herein may not be applicable. Within the State of New York varying regional procedures may affect the applicability of the contents herein.