Sentencing Advocacy - LG in the News

On January 27, one of our cases appeared on the front page of the Concord Monitor, involving a client who had volunteered for a youth sports program and while volunteering, had taken funds from the program to pay her rent and other necessities during a time of great financial crisis in her family. Here is the online version of the article.

As reported in the press, the client had fully cooperated with the police investigation and, indeed, had confessed her crime. Thus, the case did not go to trial. Instead, Attorney Lothstein's job was to advocate for the best possible outcome at sentencing by raising mitigating facts about the client and about the circumstances underlying the crime itself.

Sentencing Memorandum

In order to ensure that all relevant mitigating facts would be brought before the Judge prior to the sentencing hearing, Attorney Lothstein filed a Sentencing Memorandum. You can read it here: 2015-1-16-Wiggin-Sentencing Memo. LG's attorneys typically file these Memoranda prior to sentencing hearings in serious felony cases in State and Federal Court. A few years ago, while preparing a training, Attorney Lothstein spoke to a criminal defense lawyer who had over a decade of experience but confessed that he had never filed a Sentencing Memorandum. We find this dumbfounding. Why would any lawyer not take advantage of an opportunity for the sentencing judge to read about mitigating facts and circumstances, and develop a sympathetic outlook towards the client, before the sentencing hearing even begins?

Issue before the Judge

This client, over the course of many months prior to the sentencing hearing, had been working and steadily setting aside money to pay restitution to the youth sports program. In this case, the Judge had to decide whether to accept the prosecution's recommendation and send the client to jail for 90 days - a continuous term of incarceration which would cause her to lose her job and thereby, lose her ability to support her family and pay restitution for her crime - or accept the defense recommendation, and sentence the client to serve a sentence on weekends, so that she could keep her job and continue to make restitution payments.

What is a Capped Plea?

Attorney Lothstein had negotiated a "capped" plea agreement for this client. The maximum sentence under law for the crime was 7-1/2 to 15 years in prison. However, under the "capped" plea agreement, the maximum term that the Judge could impose was 90 days in jail. The capped plea agreement had no minimum term, but Attorney Lothstein proposed that the Judge sentence the client to serve two "weekends" in jail. Thus, the Judge had the authority to impose any sentence within the cap, which could mean adopting the government's recommendation, adopting Attorney Lothstein's recommendation, or imposing some other sentence within the limits of the agreement. If a Judge determines that even the maximum term under a "capped" plea agreement is too lenient, than the Judge can reject the plea agreement altogether, requiring the case to go to trial or the parties to reach a new agreement compatible with the Judge's view of the seriousness of the case.

What is a Weekend Sentence?

Two New Hampshire statutes, RSA 651:19 and 651:20, II, allows the sentencing court to require that the defendant serve a sentence in "intervals" of time rather than serving the entire sentence continuously. Lawyers commonly refer to these as "weekend" sentences, but since many people now work on the weekend, a so-called "weekend" sentence may require the defendant on whatever days she has off from work, which in this case, was Tuesday and Wednesday.

The Judge's Decision

In a sentencing hearing, the Judge faces the difficult job of balancing the competing and conflicting purposes of criminal sentencing: 1) Deterrence of that individual from committing future crimes, 2) deterrence of the broader population from committing similar crimes, 3) making the victim whole, 4) punishment, and 5) rehabilitation of the defendant. The Judge balanced these considerations by imposing a "weekend" sentence, so that the client could keep her job, support her family and continue her efforts to pay restitution, but requiring more "weekends" than proposed by the defendant. This was a great outcome for the client, and also a good outcome for the youth sports program, which now has a better chance of receiving restitution in a shorter period of time.