Character Reference Letters and Their Influence at Sentencing
Thinking through an effective sentencing strategy includes thoughts about the character reference letters. Every defendant has an opportunity to submit character reference letters that may make an impression on the judge. But what makes a good character reference letter for the court?
In the fall of 2016, I interviewed Judge Mark Bennett and he spoke specifically about Character Reference Letters. Judge Bennett said that he has read somewhere between 30,000 and 40,000 character reference letters. He based his estimate on the fact that he has sentenced more than 4,000 people. On average, Judge Bennett said that defendants submit between seven and nine character reference letters. Some defendants, however, go overboard. He spoke about one defendant who submitted 100 character reference letters.
Elsewhere, I wrote about the study on allocution that Judge Bennett orchestrated. In the findings published in the Alabama Law Journal that described Judges’ Views on Allocution in Sentencing, he spoke about what he learned from a survey he distributed to more than 900 federal judges. All of them, it would seem, consider character reference letters as a useful resource when deliberating over the appropriate sentence.
Bad Character Reference Letters
Before thinking about a strategy on character reference letters, I encourage readers to watch the excerpt from the interview I conducted with Judge Bennett. He tells a story about the wife of a defendant who sent out a template on ideal character reference letters. Many of the people that received the template followed it verbatim. As a consequence, the judge received scores of character reference letters that had the same phrasing. He dismissed those letters as being insincere, which did not help the defendant get the outcome he desired.
Judges also reject an amateurish strategy that many defendants try: they seek character reference letters from people of high status. Yet Judge Bennett said that he doesn’t pay any attention to letters from “senators” or so forth unless there is truth. All too often, he said, people of high stature may write character reference letters out of a sense of obligation, but not because they know anything about the defendant.
The worst character reference letters imply an appropriate sentence length. Judges do not want anyone to tell them how to do their jobs. Many judges have resisted the federal sentencing guidelines because they believed that Congress should not influence a sentence length, because members of Congress do not know the facts about an individual defendant. Likewise, judges do not want friends and family members telling him about an appropriate sentence. Those people do not know all of the facts of the case, the law, or what constitutes an appropriate sentence.
When thinking about character reference letters, start from the premise of what to avoid:
- Submitting more letters than necessary does not always help.
- Letters from high-status people fail unless writer truly speaks about the defendant’s character.
- Form or template letters may do more harm than good.
- Never submit character reference letters that tell the judge how to do his or her job, by recommending an appropriate sentence.
Best Character Reference Letters
When character reference letters avoid the flaws above, they go a long ways toward improving the outcomes for a defendant at sentencing. As Judge Bennett said, he wants to hear about the defendant’s character. He would rather hear from a janitor or a street sweeper who speaks about knowing the defendant for 10 years. That person should write about what he has seen, or what he knows about the defendant. There isn’t any need to write about the crime, and there isn’t any need to write about the sentence.
Good character reference letters help the judge understand the defendant as an individual. Ideally, the writer should express how he or she knows the defendant. If the writer has known the defendant for decades, the writer may share personal stories or experiences. For example, the writer may recall when he saw the defendant tutoring others so they could advance their career. Another example of good character may reveal how the defendant volunteered with vulnerable populations, like the elderly or at-risk children. Any personal examples or experiences with the defendant can reveal that the writer truly knows about the defendant’s character. Such insight may influence the judge to see the defendant differently from what the prosecution is presenting.
The length of the letter isn’t as relevant as providing crucial details about the character and integrity of the defendant. Good character reference letters may be as short as a few paragraphs, or they may span a few pages. Most importantly, they should be personal, and they should not be construed as being dictated or orchestrated by the defendant’s advocacy group.
With a pledge to help more defendants who struggle with character reference letters, we encourage them to draft a personal letter to friends and family members. Explain how a character-reference letter should be in the writer’s own words and not follow any sort of template. In fact, explain that a template can backfire. A sample request for character reference letters may follow this sample:
Write on Your letterhead
Dear Friends and Family:
As you know, I’m going through some challenging times. I’m about to be sentenced for a federal crime. The judge that will determine the appropriate sentence doesn’t know anything about my personal life. He only knows that I’ve been convicted of a federal crime.
The sentencing process isn’t the time to speak any more about my guilt or innocence. I am reaching out to you for help because I need the judge to know me as a human being. For that reason, I’m asking you to write a character reference letter.
If you choose to write a character reference letter, please know that you can help me most if limit your thoughts to what you know about me as an individual. The sentencing process is a formal proceeding, and federal judges take their responsibilities very seriously. If you’d like to learn more about it, please watch this three-minute video where a federal judge speaks about character reference letters:
Judge Bennett Speaks About Character Reference Letters:
Judge Bennett advised that character reference letters should not indicate an appropriate sentence length, but they should reveal how long the writer has known the defendant, and what the writer knows about the defendant’s character. The letter should also reveal that I have been honest about my complications with the criminal justice system. Finally, the letter may help me more if you pledge to remain with me as a source of support even though I am facing these challenges ahead.
In your own words, I’m hopeful that you will write about our history, about how you know I strive to live as a good person, about anything good you’ve seen in my character.
Please address your letter to (name of your judge), but please send your letter to me or my defense attorney at the following address: (insert address where you want letter sent).
Thank you very much for your help. I will work hard to prove worthy of your support.
Finally, against everything we’ve mentioned above, I’m providing content from an excellent character reference letter that proved influential at sentencing for a client we represented in our sentence-mitigation work. We suggest that you do your best to submit between eight and 12 such letters with your sentencing package.
Letterhead of the writer
The Honorable (Judge’s full name)
United States District Court Judge
Name of District Court
Street Address of District Court
City, State, Zip
Regarding: U.S. v. (Your Last Name)
Dear Judge (judge’s last name):
I have represented Tom Smith since 1995 and I write this character reference letter to express my support. I have advised Tom that, as his attorney, our communications are protected from disclosure. Yet Tom has asked that I be open about his troubles and he has waived the attorney-client privilege for this purpose.
I have done legal work on behalf of Tom for the past 21 years. We’ve worked together in a variety of areas related to his business ventures and his estate planning. I first started representing Tom soon after he relocated to Newport Beach from New York. Throughout this continuous (and continuing) attorney-client relationship, I have not only developed a great respect for Tom as a businessman, as an employer, but also as a human being. I consider Tom a close personal friend.
Tom discussed his troubles with me almost immediately after he became aware of the criminal investigation. I tried to help him secure competent counsel, as I do not practice criminal law. From the beginning, Tom expressed great remorse for his action. He showed genuine regret not merely for the criminal or civil liabilities he faced, but for the wrong to which he contributed.
Tom confided in me that he had a sincere understanding that his actions were immoral and wrong. In our many conversations about his troubles, he has never once tried to defend, minimize, or explain away his activities. Nor did he ever try to shift moral blame on others. As surprised as I was that Tom had engaged in behavior that was completely out of character for the man I knew him to be, the one who I believe was more surprised than me was Tom himself. Tom knew he was above such behavior and was, and remains, ashamed that he had fallen so far below his own standards for himself.
Tom is a man that frequently volunteers and strives to contribute to our community. I am forever grateful to Tom for inviting me to accompany him one Saturday for an afternoon of fun. He didn’t tell me his plans or where we were going, so I was somewhat surprised to drive into a community center in Santa Ana; I expected that we would be enjoying his box seats at a professional baseball game.
When I asked Tom what we were doing in Santa Ana, he told me that we would spend the day teaching homeless people how to prepare for job interviews. Side by side, we sat at a table for six hours, counseling people who wanted to transition into the labor market. While Tom offered guidance from the perspective of a successful employer, I sat in awe of his ability to inspire and guide people, offering whatever insight I could. By the end of the day, Tom gave his direct contact information to four people that he pledged to hire. I walked away from that day, grateful for the experience. Tom told me that he not only funded the program anonymously, but that he spent one day each month volunteering his time.
Tom is a good person. Since I’ve known him for decades, I truly believe his wrongful actions represent an aberration that he will never repeat. He has demonstrated honesty, integrity, and fairness in more than 100 transactions in which I have been directly involved. Tom is a loving father, grandfather, and conscientious citizen.
Thank you, Your Honor, for taking these thoughts into consideration as you deliberate on the appropriate sentence. I stand ready to offer further support to Tom as he may require.
Name and signature
Notice that the sample letter above is very personal. It reveals how the writer knows Tom. The letter shows that Tom was truthful about his problems with the criminal justice system, suggesting that he truly learned from the experience. The writer does not suggest a sentence to the judge, but focused exclusively on what he knew about Tom’s personal character, and revealing a story. It’s clearly not a form letter, but a heartfelt letter that expresses Tom’s good character.
Consider e this example of excellence in your quest to find character reference letters that can help your cause.
Our course on sentencing narratives may help. If you have resources for one-on-one assistance, call or text me at 415-419-1728 / email: Michael@MichaelSantos.com
Remember: The PSR can influence the length of the federal prison sentence.
- The PSR can influence the type of prison where the Bureau of Prisons will designate the offender.
- The PSR can influence the amount of access the defendant has to telephone calls.
- The PSR can influence the amount of access the defendant has to visits.
- The PSR can influence the types of programs the individual may be eligible to participate in.
- The PSR can influence whether the defendant qualifies for a time cut under the Residential Drug Abuse Program (RDAP).
- The PSR can influence the individual’s time on supervised release.
Defense attorneys will limit their guidance to matters concerning the judicial proceedings. Few defense attorneys concern themselves much with the presentence investigation because they do not grasp the importance of the presentence investigation as the defendant proceeds through federal prison. A competent prison consultant will have a depth and breadth of experience of navigating federal prison. Prison consultants who have extensive experience will know how to influence the presentence investigation report in ways that will position the defendant:
- To serve the lowest possible sentence.
- To serve the sentence in the best possible environment.
- To have the best possible experience in the halfway house.
- To conclude his period of supervised release at the earliest possible time.
Prison Consultant Services